A refugee, under international law, is defined as any person who:
... owing to 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, 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 ... is unable or, owing to such fear is unwilling to return to it.3
The cornerstone of refugee protection is the principle of non-refoulement, which provides that no refugee should be returned to any country where he or she is likely to face persecution on grounds of race, religion, nationality, political opinion, or membership of a particular social group.4 For this principle to have meaning in practice, states must have domestic legal regimes whereby the rights and responsibilities of refugees and their host governments are recognized and which establish a fair screening mechanism to determine whether a person or group has a valid claim to refugee status.
The Thai Government
The main obstacle to refugee protection in Thailand has been the Thai government, in part because of its relations with the SLORC and the SLORCs successor and in part because of its desire to avoid an internationalization of the refugee problem as occurred after it became the reluctant host to over one million Indochinese refugees in the late 1970s. If it has lacked the political will to protect refugees, it has also lacked the tools: it has neither the requisite legal regime nor adequate screening procedures in place to afford real protection.
In Thailand, the legal regime to protect refugees is extremely weak. Like many other countries in the Asian region,Thailand has not signed the Refugee Convention, although it is along with Bangladesh, India, and Pakistan a member of the ExCom, a body which has been at the forefront of developing standards and guidelines to protect refugees. There is no regional refugee instrument in Asia, such as exist in Africa and Latin America and which go further than the Refugee Convention in providing specific legal standards for the treatment of refugees.5 In addition, Thailand has no domestic legislation covering the treatment of refugees. The 1979 Immigration Act (amended in 1980) is the only relevant piece of legislation, and under this law all undocumented asylum-seekers are considered "illegal immigrants" and liable to summary deportation.6 Appeals by asylum-seekers against deportation are rare since, although such appeals can generally be made to the Ministry of Interior, they are not allowed in the case of those without passports, equivalent identification documents, or visas. Even in cases of appeals against deportation made by asylum-seekers, the courts have rejected attempts to invoke the Refugee Convention.
Thailand's obligations in refugee law terms therefore stem from the acceptance of non-refoulement as a part of customary international law as well as from international human rights treaties that it has ratified.7 Various conclusions of ExCom reaffirm that the principle of non-refoulement forms part of the obligations owed to refugees by the entire international community.8 Thailand has also ratified three of the six core multilateral human rights instruments.9 These are the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of Discrimination Against Women (CEDAW).10 Thailands obligations under these treaties extend to all those within its jurisdiction, without discrimination of any kind. Refugees are by definition people who have been denied basic human rights by their own government. They are entitled to the same fundamental rights and freedoms as the citizens of the host country and to protection of their rights by the host government.11 It is important to note that these treaties require states parties not only to refrain from action which violates the rights contained in the conventions but also in some cases to take positive measures to ensure full respect of those rights.
If the legal regime for the protection of refugees in Thailand is weak, the refugee status determination procedures are almost non-existent. Thailand has not established any state-run system to determine if Burmese asylum seekers are refugees, although it has permitted UNHCR's office in Bangkok to run a limited determination process of its own to decide if Burmese who apply to its office in Bangkok in person are "of concern." Because of Thai sensitivities on the subject, it does not use the word "refugee," although it is presumed that UNHCR is using the term refugee and "person of concern" synonymously.12 In the border areas, refugees who have been permitted by Thailand to establish camps or enter existing ones are recognized in Thai terminology only as "temporarily displaced" people fleeing fighting, to whom Thailand offers refuge as a humanitarian gesture until such time as the fighting ends and they can return to Burma. Thus, while they have been permitted to enter camps, these are not called "refugee camps," nor do the camps indicate recognition by Thailand that the inhabitants are prima facie refugees. As long as the Thai government does not formally acknowledge the existence of Burmese refugees within its borders, the UNHCR program will continue to be severely limited.
The lack of a formal refugee determination procedure does not give Thailand license to violate the principle of non-refoulement, as it has repeatedly done. Refugees must be protected regardless of whether they have formally been determined to be such. As the Note on International Protection presented to the 48th session of ExCom stated, Preventing asylum seekers from finding safety, or from obtaining access to procedures, negates their fundamental rights, and may amount to refoulement in breach of international law.13 The principle of non-refoulement therefore must apply to asylum seekers as well as those determined to be refugees, at least during the period in which no comprehensive determination of refugee status exists.
Although Thailand has provided temporary protection to over 100,000 refugees in camps along part of the Thai-Burmese border since 1984, it has also sporadically engaged in large-scale pushbacks, rejected new arrivals at the border, and deported individuals who have good reason to fear for their lives and safety should they be returned to Burma.14 Many of those who fear persecution in Burma face an impossible choice. If they are found outside established refugee camps, they face arrest and deportation under Thailand's Immigration Act. But to apply toUNHCR to become a "person of concern," they have to travel to Bangkok, putting themselves at risk by leaving the camps. In some areas, such as Chiang Mai and Chiang Rai provinces, Thailand has not permitted any refugee camps to be set up, despite large numbers of people from Burma's Shan state entering this province to escape continued forced relocations and associated severe human rights abuses.15
For its part, UNHCR has been less forceful than it might have been in trying to challenge Thai government actions. UNHCR has had a presence in Thailand since 1977, when, in an agreement known as an accord de siege, the office of the UNHCR regional representative was established in Bangkok. The agreement was amended in 1983 when the office was downgraded from a regional to a branch office; in 1997, it was changed back through an exchange of letters to a regional office. In none of these documents (none of which is publicly available), was there any limitation on the scope of UNHCRs work, in terms of its mandate or geographic focus. Nevertheless, at the beginning of 1998 the Thai government continued to insist that UNHCRs mandate was limited to work on behalf of the Cambodians, Vietnamese, and Laotians who flooded into Thailand in the aftermath of the Vietnam War and not the Burmese.
The experience with the Indochinese refugees had a major impact on both UNHCR and the Thai government. In the aftermath of the Vietnam War, many Western states were willing to advocate protection for, and to resettle, Indochinese refugees. In this context, UNHCR considered all Laotians coming into Thailand as prima facie refugees until 1985; it considered all Vietnamese as prima facie refugees until 1989. In both cases, the Thai government allowed UNHCR to provide limited assistance with screening and resettlement in third countries. Particularly with regard to the Hmong refugees from Laos, however, Thai authorities saw UNHCR assistance as providing a pull factor, drawing more and more people into Thailand.
Cambodians constituted the largest group of the Indochinese refugees in Thailand in the late 1970s and 1980s. UNHCR had been allowed to assist new Cambodian arrivals beginning in November 1979, after international outrage at several incidents of mass pushbacks by Thailand which resulted in the deaths of thousands of refugees in heavily mined war zones. After 1982, humanitarian assistance was taken over by a new ad hoc agency created for the purpose, the United Nations Border Relief Operation or UNBRO, but UNHCR continued to play a protection role. In July 1989, the U.N. secretary general designated UNHCR as the lead agency for the repatriation of Cambodian refugees within the context of the Paris Agreements of 1991 on the Comprehensive Political Settlement of the Cambodian Conflict. Refugee repatriation formed an integral part of these accords and implementing memoranda that followed. They included acknowledgment that UNHCR and other international agencies would have access to the refugees in the country of refuge as well as to the returnees in the country of origin; that UNHCR would have a monitoring function both in Cambodia and Thailand (by having an uninterrupted and enhanced presence in all camps in Thailand); that UNHCR would disseminate information on an ongoing basis to the refugees throughout the repatriation process; and that short-term repatriation assistance would be provided to returnees.16
The main lesson learned by Thai officials from the Indochina experience was to avoid internationalizing a refugee issue at all costs, because in their view, it only made it harder to persuade the refugees to go back. For UNHCR, one of the main lessons was that large, closed camps that denied refugees any opportunity to control their own future were far from ideal. It was also clear that while Cambodia was at the center of Asian regional politics from 1979 onwards, and given the international and regional will for a solution, UNHCR in that instance had more room to maneuver vis-a-vis the Thai government. Burmas refugees may have lost out by not being strategically important. As a result, UNHCR and the international community failed to react when protection of the refugees, both from cross-border raids and refoulement by Thailand, started to become a real and pressing issue from 1994 onwards.
As in all countries, the presence of UNHCR in Thailand has depended on its relations with representatives of its host government. In the Thai case, this has included both officials in Bangkok and, sometimes more importantly, local civilian and military officials on the border. The Thai government has been more concerned with preventing a massive influx of refugees, stemming the flow of migrant workers, maintaining good relations with the Burmese government, protecting its international image, and balancing relations between civilian and military parts of the government than with protecting refugees. UNHCRs institutional priorities have been to fulfill its mandate of protecting refugees and ending the refugee crisis in the region, but also to maintain a presence in Thailand. Too often, this has led the agency to compromise and capitulate under government pressure, leaving the Thai army, the National Security Council, and other parts of the government as the sole arbiters of the refugees fate.
The Bangkok office of UNHCR has also tended to adopt an overly narrow interpretation of the refugee definition, contrary to the intentions of the drafters of the Refugee Convention and to subsequent UNHCR guidelines and commentaries on the matter. As UNHCR stated in the 1994 Note on International Protection, it has always been understood that the basic definition of refugee was meant to have an inclusive meaning, rather than a restrictive one, in accordance with the fundamental objective of providing international protection to all who need it.17 This inclusive approach was reflected in the Organization of African Unitys 1969 refugee convention, which expanded on the 1951 refugee definition, stating that, the term refugee shall apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.18 Over the years, this definition has come to be favored in other regions of the world by governments, by refugee organizations, and by UNHCR, as it places more attention on objective conditions in the country of origin and less on proof of individual fear of persecution.19 The use of a very narrow refugee definition by the UNHCR Bangkok office, which at times has been taken to mean only those with a well-founded fear of persecution owing to their political beliefs, has meant that many Burmese who face serious threats to their lives and liberty and have a valid fear of persecution are not recognized as refugees and receive no protection, either from the Thai government or from UNHCR.
Finally, UNHCR has generally, and perhaps too willingly, followed the Thai governments broad general distinction between two groups of Burmese, the students who fled urban areas of Burma after the 1988 uprising and whose claims of political persecution were not contested, and the ethnic minority refugees who were regarded as temporarily displaced. The distinction between the two groups has not been absolute, and there have been further distinctions among the ethnic minorities (those from Shan state, for example, are treated with much more suspicion than those coming from Karen and Mon areas, because of the extensive narcotics trafficking in Shan state). The result has been a multi-tiered protection system, with the ethnic minorities receiving even less protection than the students.
As a result of these policies by both the Thai government and UNHCR, refugees from Burma remain largely unrecognized and unprotected at a time when there is an urgent need to differentiate between those deserving ofasylum and those who have entered Thailand in order to find work and do not have a well-founded fear of persecution in Burma. Thailand is host to over one million illegal migrant workers, about 75 percent of whom are Burmese. For many years these workers, who undertake the most dangerous, dirtiest, and worst-paid jobs in Thailand's construction, fisheries, and agricultural sectors, were welcomed by the Thai business community and the government. However, the continuing economic crisis which struck Thailand in July 1997 resulted in mass unemployment and the development of new government policy aimed at freeing up as many jobs for Thai nationals as possible. In January 1998 the government announced its intention to deport Thailand's entire foreign illegal-immigrant workforce by the end of 1999. Under the plan, four repatriation centers were to be established to facilitate this deportation process in provinces bordering Burma Tak, Kanchanaburi, Chiang Rai, and Ranong although by July 1998 none of these had been built. Roundups and deportations of illegal immigrants occurred in January 1998 in the Mae Sot area, where a number of large refugee camps are situated. Since then, while accurate figures are not available, there has been a steady rise in deportations as procedures have been speeded up. There is a real danger that without any system by which individuals can assert a claim to refugee status and have that claim assessed, many of those deported under this new policy will in fact be refugees. People unable to enter the refugee camps that have been closed to new arrivals, those on their way to or from Bangkok to try and register with UNHCR, or those who come from an area where no refugee camps exist, such as in Chiang Mai province, may be among those rounded up and deported.3 Article 1 of the Refugee Convention. The 1967 Protocol removes the temporal restriction contained in the Refugee Convention (limited to refugees resulting from a pre-1951 event). The 1967 Protocol also broadens the protection offered by the Refugee Convention by extending its reach to cover non-European refugees as well as European refugees. 4 This obligation is contained in Article 33 of the Refugee Convention, and it is also widely accepted to be a norm of customary international law and therefore binding on all states. See Guy Goodwin-Gill, The Refugee in International Law (Oxford: Clarendon Press, 1996), p. 167-170.
5 The Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa of September 10, 1969 and the Cartagena Declaration on Refugees of November 19-22, 1984.
6 Article 11 of the Immigration Law provides that all persons entering Thailand must do so via prescribed entrance points. Article 12 sets out various categories of people who are to be denied entry including (i) those without passports, equivalent identification documents or visas; (ii) those without means of support if they enter the Kingdom; (iii) those who are dangerous to society or to the peace and security of the Kingdom. Most asylum-seekers will fall in one or more of these categories. Under the law, any alien who enters Thailand without permission may be deported, imprisoned for a maximum term of two years and assessed a fine of up to 20,000 baht.
7 The importance of human rights standards in this context was highlighted in the Note on International Protection presented to the 47th session of ExCom in 1996, which stated "within the substantive content of protection frameworks, human rights standards have a central place ... the objective of protection is to secure for involuntarily displaced populations those fundamental rights and freedoms which a state should afford its citizens." ExCom 47th Session, Note on International Protection, July 1, 1996, paragraphs 20 and 23.
8 Conclusion No. 77 (XLVI) 1995; Conclusion No. 65 (XLII) 1991; Conclusion No. 50 (XXXIX) 1988; over fifteen years ago in 1982 ExCom stated in Conclusion No. 22 (XXXIII) that non-refoulement was acquiring the character of a peremptory norm of international law, that is, one from which states are not permitted to derogate and which can only be modified by a subsequent norm of general international law having the same character. It is important to note that all ExCom conclusions are passed by consensus and that Thailand was a member of ExCom when each of the above conclusions came into being.
9 The three core human rights treaties Thailand has not ratified are the International Covenant on Economic, Social and Cultural Rights of 16 December 1966, the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984.
10 Thailand acceded to the CRC in 1992, the ICCPR in 1996, and CEDAW in 1985. Thailand has made four interpretative declarations to the ICCPR but has not entered any reservation in relation to it. In relation to the CRC, it has entered reservations to three provisions: Article 7 concerning nationality, Article 22 concerning refugee children, and Article 29(c) concerning education. The text of the reservation states that the application of those articles "are subject to national laws, regulations and prevailing practices in Thailand." Many of the remaining provisions, however, are relevant and applicable to refugees and asylum seekers.
11 CRC, Article 2(1); ICCPR, Article 2(1).
12 "Person of concern in UNHCR terminology refers usually to people who are outside the Refugee Convention definition but are nevertheless in need of international protection, such as the internally displaced. However, in the case of Thailand, which has not signed or ratified the Refugee Convention, the term is used misleadingly to refer to those who have been recognized as refugees under the terms of the convention after screening procedures have been carried out. Throughout this report such individuals are referred to as UNHCR-recognized refugees.
13 See paragraph 14, Note on International Protection, submitted to the 48th session of the Executive Committee of the High Commissioners Programme, 2 July 1997
14 See Human Rights Watch/Asia, "Burma/Thailand: No Safety in Burma, No Sanctuary in Thailand," A Human Rights Watch Short Report, vol. 9, no. 6(C), July 1997 (hereinafter "No Safety ..."); Human Rights Watch/Asia, "The Mon: Persecuted in Burma, Forced Back from Thailand," A Human Rights Watch Short Report, vol. 6, no. 14, December 1994 (hereinafter, "The Mon...).
15 See Shan Human Rights Foundation, Uprooting the Shan: SLORC's Forced Relocation Program in Central Shan State (Thailand: Shan Human Rights Foundation, December 1996); Human Rights Watch/Asia, "No Safety ...," pp. 20-24.
16 See Asia Watch (Now Asia Division of Human Rights Watch), Political Control, Human Rights and the UN Mission in Cambodia, (New York: Human Rights Watch, September 1992), p. 7.
17 Paragraph 25, Note on International Protection submitted to 45th session of the Executive Committee of the High Commissioners Programme, 7 September 1994
18 Article 1, 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.
19 See UNHCR The State of the Worlds Refugees, 1997-98, Oxford University Press, Oxford:1997, p. 52