Humanising policy towards refugees
text size

Humanising policy towards refugees

Illegal migrants, thought to be Uighurs, are caught in a rubber tree plantation in Songkhla in March last year. (Photo: Vichayant Boonchote)
Illegal migrants, thought to be Uighurs, are caught in a rubber tree plantation in Songkhla in March last year. (Photo: Vichayant Boonchote)

The recent death of a Uighur man -- who had sought refuge in Thailand and was subsequently detained for nearly a decade, was a sad reflection of the unbalanced response towards persons who seek refuge, or "refugees", in this country. Various groups currently seek protection from persecution, armed conflicts and key human rights violations in their country of origin, and they deserve to be treated decently and humanely.

Regrettably, that incident clouds the country's brighter side on human rights. For several decades, some 90,000 persons who sought refuge from Myanmar (particularly ethnic minorities) have enjoyed the hospitality of this country, at least temporarily, pending other solutions. They have generally not been pushed back to their country of origin.

Another positive development is incorporating a national screening procedure for those seeking protection from persecution originating in other countries. The authorities have been preparing various rules of procedure and documents to indicate and acknowledge the legal status of these persons. When waiting to be screened by a panel appointed by the authorities, they are perceived as "persons who seek protection", with a temporary legal document which can offer them a degree of protection from forced repatriation. If they pass the test, based closely on the international "refugee" criterion of those with a well-founded fear of persecution in the place of origin, they are classified as "protected persons" with an upgraded document attesting to their status. There is thus assurance of temporary refuge or asylum in this country pending permanent solutions, with correlative humane treatment.

Why do the authorities not classify those people as "refugees" when they are refugees in substantive terms and international law? The formulaic official reply is that the country is not a party to the 1951 Refugee Convention and its 1967 Protocol. According to that position, shunning the term "refugees" also means discretion to the authorities to avoid being bound by those treaties and their rules, including the principle of no pushback to areas of danger or "non-refoulement".

That anachronistic approach has now been overtaken by Thailand's new law countering torture, cruel, inhuman and degrading treatment (CID), and enforced disappearance, which entered into force on Feb 22. This new anti-torture legislation -- formally named the Prevention and Suppression of Torture and Enforced Disappearance Act, is based on Thailand's ratification of the UN Convention against Torture, which complements the Refugee Convention. A key provision of the new law is that officials must not push back persons with a well-founded fear of torture, CID or enforced disappearance. This is an absolute rule, and no invocation of national security is permissible. This is the first time that the non-refoulement principle appears as part of Thai law, and it overrides past justification of pushbacks which were based upon official discretion under the national immigration law and cloistered security policies.

Given that new scenario, how are these three precarious groups who seek refuge in this country to be treated: the Rohingya, post-2021 coup Myanmar nationals, and the Uighurs?

The first group originating in Myanmar (especially from Rakhine state) and numbering several hundred, are still in immigration detention unless they are classified as trafficked victims under this country's anti-trafficking law. Human trafficking generally involves transferring a person via abusive means (such as fraud) into a situation of exploitation (such as forced labour). The conditions in their country of origin are generally known to be appalling, hampered by discrimination, deprivation and violence. Logically, this group deserves to be cared for well and not detained in immigration detention, irrespective of whether they are trafficked victims.

The second group numbers some 10,000 new arrivals from Myanmar in the past two years; they are generally members of the opposition, dissidents and others of Burman origin. The status of this group needs to be clarified, and their protection should be ensured, with monitoring and assistance from the main UN agencies on the issue -- the Office of the UN High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM). In the past two years, those entering Thailand were accommodated in various temporary safety areas. Many were later pressured to return to various camps on the other side of the border. Yet, many more remain inside this country, and they need humane policy and law-related guidance; this is now emerging.

Thailand's new anti-torture law provides a normative framework afresh: no pushback is allowed to the country of origin in the face of torture, CID or enforced disappearance. On the policy front, the preferred option is not difficult; please treat them well, similar to the other 90,000 who have been here for decades. Access to refuge in third countries, with Thailand as a transit point, remains a continuing option until the conditions in their country improve substantively for safe return. Better still, they should be allowed to access universities and employment. This should also apply to others groups on the basis of non-discrimination.

Finally, a most challenging situation confronts the Uighur group numbering about 50 in Thailand and entering from a nearby country. They are still in detention. The Uighur group is a Muslim community originating in Central Asia, and UN agencies, including the UNHCR, have been advocating for their protection and assistance in various parts of Asia. A few years ago, from Thailand, some Uighurs were allowed to go abroad to resettle, but sadly, families were separated before they were allowed to do so. Another group was forced back to their place of origin, and their fate needs to be tracked. The group remaining in Thailand now should not be in immigration detention, and they should have access to various humane solutions, including resettlement in third countries.

The Thai administration should contemplate this implication of the new anti-torture law. Keeping persons seeking refuge in detention unjustly might be tantamount to torture or CID, which means violating the Prevention and Suppression of Torture and Enforced Disappearance Act, with resultant accountability. The preferred option is to follow the good practices of the variable past while eschewing the not-so-good practices of the fickle past-cum-present.

Vitit Muntarbhorn

Chulalongkorn University Professor

Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University, Bangkok, Thailand. He has helped the UN in a number of pro bono positions, including as the first UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography; the first UN Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea; and the first UN Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity. He chaired the UN Commission of Inquiry (COI) on Cote d’Ivoire (Ivory Coast) and was a member of the UN COI on Syria. He is currently UN Special Rapporteur on the Situation of Human Rights in Cambodia, under the UN Human Rights Council in Geneva (2021- ). He is the recipient of the 2004 UNESCO Human Rights Education Prize and was bestowed a Knighthood (KBE) in 2018. His latest book is “Challenges of International Law in the Asian Region”

Do you like the content of this article?