At almost no time since Burmese asylum seekers started arriving on Thai soil in 1984 has the need for protection of this group been greater.1 Human rights violations inside Burma continue almost a decade after the State Law and Order Restoration Council (SLORC) seized power in Burma in September 1988. The announcement on November 15, 1997 that SLORC had been dissolved and replaced by the State Peace and Development Council (SPDC) has done nothing to improve the situation, and refugees continue to flow into Thailand. As of September 1998, there were over 110,000 refugees in camps along the Thai-Burmese border and hundreds of thousands more in Thailand who were unable or unwilling to stay within the refugee camps but who had suffered clear abuse at the hands of the Burmese government. Deportations of undocumented Burmese migrants, some of whom would have a clear claim to refugee status had they been permitted to make one, were also on the increase.

Thailand is not a party to the 1951 United Nations Convention on the Status of Refugees (Refugee Convention), the main international treaty for the protection of refugees, nor to its 1967 Protocol, despite being a member of the Executive Committee (ExCom) of the High Commissioner’s Programme of the United Nations High Commissioner for Refugees (UNHCR) since 1979.2 Thailand nevertheless has obligations towards refugees based in customary international law, the most important of which is the obligation not to send refugees back to any country where they are likely to face persecution; this is the principle of non-refoulement.

Over the past ten years, the Thai government has repeatedly violated this principle with respect to Burmese. Human Rights Watch is concerned that economic and political pressures caused by the continuing economic crisis in Thailand place refugees and asylum seekers in even greater danger of refoulement as the Thai government seeks to expel all undocumented migrants and often makes little distinction between migrants and refugees. UNHCR, the preeminent agency charged with the protection of refugees, has had an office in Bangkok since 1977 but, in the face of significant obstacles from the Thai government, is to a large degree failing to protect refugees from Burma. Only in February 1998 did the Thai government begin negotiations which would allow UNHCR a formal role on the Thai/ Burmese border. Although these negotiations were ongoing as this report went to press, indications were that they would result in a limited protection role for UNHCR, restricted to those refugees in camps on the border and with the primary aim of facilitating eventual repatriation to Burma.

This report, based on Human Rights Watch research since 1988, documents the history of the treatment of Burmese refugees in Thailand. It examines the factors affecting Thai government policy, including its experience with Indochinese refugees in the 1970s and ‘80s and the changing relations between Thailand and Burma. It then profiles the two major groups of refugees from Burma, the "students" — a catch-all phrase to denote the mostly urban students and professionals who took part in the 1988 uprising and subsequent political protests — and members of the different ethnic minority groups living close to the Thai-Burmese border who have fled armed conflict, forced displacement, forced labor, and other abuses.

The "students," who generally have better access to UNHCR's Bangkok office and constitute the overwhelming majority of those deemed to be "persons of concern to UNHCR," were told by the Thai government in 1992 to moveto a site known as the "safe area" situated in Ratchaburi province or face deportation. In mid-1995 Thailand suddenly announced the closure of the "safe area" to new entrants, and UNHCR extended the use of its "border case" category, meaning that many of those who applied for protection in Bangkok and were recognized to be persons of concern must return to the border camps. Only if a person could show "secondary persecution" at the border camps would UNHCR provide assistance and protection in Bangkok for those waiting to enter the "safe area."

For the Burmese from ethnic minority groups, some of whom were allowed to establish camps on the Thai-Burmese border, the situation is often worse. At the time this report went to press, UNHCR had no presence in and only limited access to these camps, which since 1994 have been vulnerable to cross-border attacks by Burmese troops or breakaway factions of rebel groups. A generally benign laissez faire attitude on the part of Thai authorities toward the camps that was in effect from 1984 shifted to a much more hard-line stance around 1992, as relations between Rangoon and Bangkok warmed and Thai investors saw increasing economic opportunities in Burma. The Thai government also took the position that as SLORC concluded cease-fire agreements with various ethnic armies and the level of fighting decreased, ethnic minority refugees had nothing to fear by returning home. They ignored the pattern of systematic human rights violations, including forced labor, that had led many of the refugees to flee in the first place. As a result of the tougher stance toward refugees, however, there were repeated instances of refoulement by the Thai army. The camps are becoming increasingly closed, and many will not permit any new refugees to enter.

This report analyzes the difference in treatment that the two groups of refugees have received from the Thai government and UNHCR. It concludes with an analysis of why protection of Burmese refugees in Thailand has failed and makes the following recommendations to the parties involved.

Recommendations

To the Royal Thai Government:

· Thailand should ratify the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.

· Thailand must immediately cease the practice of closing its borders to new asylum seekers arriving from Burma. It must abide by its obligations under customary international law in relation to all refugees, including the obligation of non-refoulement, which applies to rejection at the frontier in addition to the forced return of those with a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

· Thailand must abandon its current position that only those fleeing direct fighting are entitled to temporary stay in Thailand, in favor of a position which recognizes the Refugee Convention definition of "refugee" and places greater emphasis on what the conditions in Burma must be before a voluntary repatriation of refugees can take place.

· Thailand should establish refugee status determination procedures by which asylum seekers can seek recognition as refugees in order to distinguish them from other migrants, thereby enabling Thailand to act consistently in accordance with its obligations under international law to provide refugees with international protection.

· Thailand must permit UNHCR to carry out its full mandate to protect and assist refugees and asylum-seekers from Burma. Thailand should allow unimpeded access by UNHCR to all refugees and asylum-seekers and a UNHCR presence in all places where refugees and asylum-seekers reside. It should allow unimpeded access by humanitarian nongovernmental organizations (NGOs) to all such areas, including the Ratchaburisafe area.

· Thailand should allow the establishment of refugee camps which are situated at a safe distance from the border with Burma in accordance with international standards. Those presently located so close to the border as to be vulnerable to cross-border attacks should be relocated to a safer distance inside Thailand. Pending such camp relocations, while it is recognized that a level of increased security within those camps aimed at increasing the protection of the refugees is to be welcomed, the nature of these camps should not be such as to amount to detention or detention-like conditions.

· Thailand should seek, by all available means, to encourage the government of Burma to respect human rights and in particular to cease those practices, such as forced labor and forced relocation or displacement, which result in refugee outflows. Thailand should seek assistance and support from the Association of South East Asian Nations to ensure that the Burmese government takes meaningful steps to promote the civil, political, social, economic, and cultural rights of all Burmese without restriction or discrimination.

To the Office of the United Nations High Commissioner for Refugees (UNHCR) :

· In its negotiations with the Royal Thai Government, UNHCR should insist on free and unimpeded access to all refugees and asylum seekers from Burma at all times, including those in the Karenni camps, those from Shan state and those in the migrant labor workforce with a genuine fear of persecution in Burma. All reports to date of discussions between UNHCR and the Royal Thai Government refer only to those refugees already in camps. It is imperative that any agreement must be comprehensive, including all refugees from Burma.

· UNHCR must address the question of how to protect refugees from Burma's Shan state, given the high level of suspicion on the part of the Thai government that any border crossers from Shan state are economic migrants or drug traffickers. If no other mechanism can be found, at the very least refugee camps for this group should be established so that the refugees are given the opportunity to receive assistance and protection.

· UNHCR must provide guarantees that its primary role with the Burmese refugees will be to monitor the protection and welfare of the refugees and will not be conditional on its involvement in a voluntary repatriation program. Repatriation to Burma should only be considered once the human rights conditions in the country are conducive to return. While forced relocations, forced labor, and other human rights abuses continue in Burma, UNHCR should neither endorse nor participate in the repatriation of the refugees.

· UNHCR should actively encourage the Thai government to move refugee camps to a safe distance from the border and out of range of attack from troops inside Burma. It must also ensure that new arrivals from Burma are provided ready access to the camps and protected from deportation back to Burma.

· UNHCR should insist that the Thai government not hold refugees and asylum-seekers from Burma in conditions amounting to detention, either in immigration detention centers, prisons, police lock-ups, or closed refugee camps. UNHCR has stated on several occasions that freedom from detention is a fundamental human right and that the use of detention is contrary to the principles of international refugee protection and, in many instances, is contrary to the norms and principles of international law. As a general rule, asylum seekers should therefore not be detained.

· Until the above recommendations are implemented, UNHCR should abandon the policy of "border cases," that is insisting that those determined to be refugees (or "persons of concern") must return to the refugee camps on the border unless they can show secondary fear of persecution there.

· UNHCR should continue to press for a permanent presence in the "safe area" in Ratchaburi province.

· UNHCR should issue those recognized as refugees with documentation certifying refugee status in accordance with Conclusion No. 8 (1977) of the Executive Committee of the UNHCR program on determination of refugee status.

· UNHCR should actively encourage Thailand to establish its own refugee status determination procedures, particularly in view of Thailand's expressed intention to do so as early as 1977. In the absence of a state-run refugee status determination procedure which is open to all asylum-seekers, UNHCR should reaffirm that all those who cross into Thailand seeking refuge from persecution in Burma are considered to be prima facie refugees. UNHCR should avoid use of terminology such as "displaced persons" or "person of concern" in place of "refugees," given the legal protection, primarily protection against refoulement, that flows from being a refugee.

· UNHCR must thoroughly reassess aspects of its refugee status determination procedure with respect to Burmese who apply individually to its office in Bangkok. In particular:

(1) UNHCR should restate publicly that the criteria applied when determining whether an applicant from Burma is a refugee are those set out in the Refugee Convention. It should ensure that decisions are made in accordance with these criteria, using its own handbook as a guide. It must ensure that narrower criteria, particularly a tendency to focus just on those who have been politically active inside Burma, are not adopted.

(2) The transcript of the interviews conducted by UNHCR eligibility officers of each applicant in the course of the refugee status determination procedure should be read back to the applicant to enable correction of inaccuracies or inconsistencies. The applicant should be provided with a copy of the interview transcript.

(3) UNHCR should permit the applicant to be accompanied by a representative or adviser at the interview conducted by the UNHCR eligibility officers in the course of the refugee status determination procedure.

(4) UNHCR should set out in writing a reasoned decision in the case of the refusal of an application in order to allow a proper and meaningful appeal to be lodged and to improve the transparency of the decision-making process.

(5) Until such time as UNHCR abandons the category of "border case," it should allow a formal right of appeal against that categorization and tell applicants of the existence of that right of appeal in the letter informing them that he or she has been classified as a "border case."

To the government of Burma:

· All cross-border attacks on unarmed civilians in refugee camps in Thailand perpetrated by groups operating on Burmese soil and with the tacit consent of the State Peace and Development Council (SPDC) must immediately cease. Those responsible for such acts, which have resulted in deaths and abductions, must be prosecuted.

· The government must comply with the U.N. Commission on Human Rights resolution of April 20, 1998 (E/CN.4/1998/L.91/Rev.1). In particular, it must “end the enforced displacement of persons and other causes of refugee flows to neighboring countries and to create conditions conducive to their voluntary return and full reintegration in safety and dignity, including, where these are lacking, full rights of citizenship, in closecooperation with the Office of the United Nations High Commissioner for Refugees.”

To the International Community:

· Governments with an interest in the region — notably Japan, the U.S., member states of ASEAN and the European Union (E.U.), Australia, and Canada — must press Thailand to accede to the Refugee Convention and its 1967 Protocol, and give support to UNHCR in its negotiations with the Thai government to ensure that the rights of the refugees will be adequately protected in any future agreement between the two bodies.

· All member states of the United Nations should press Burma to implement the 1997 U.N. General Assembly resolution.