Transnational repression is emerging as a critical concern for the world community, including the Asean region. Basically, it encompasses actions by state authorities and their agents to intimidate, harass and or harm those deemed to be dissidents -- usually their nationals -- who have sought shelter or are present in other countries.
It often takes place insidiously across borders, with the collusion of the latter's authorities, but also affects the safety of persons who seek refuge in other countries and are sought after by the state of origin.
The classic case is the situation where a dissident from country X becomes the subject of enforced disappearance or intimidation in a neighbouring country or is threatened with deportation from the latter. Currently, Thailand is faced with a key case of a Vietnamese refugee whom the Thai authorities arrested last Tuesday, even though he has been recognised as a refugee by the UN. Regrettably, there seems to be pressure across borders to push him back to the state of origin.
Thailand should ensure that it abides by International Law and rejects politically opportunistic actions that violate human rights. The following considerations reinforce this.
Firstly, the country recently became a party to the International Convention for the Protection of All Persons against Enforced Disappearance. The crime of enforced disappearance involves state officials who deprive someone of liberty and hide their whereabouts. The treaty also prohibits this country from sending a person to a country where there is fear of enforced disappearance.
Second, the county is a longstanding member of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment. This treaty also prohibits "push-backs" to a country where there is fear of torture or the equivalent.
Third, the new Thai law prohibiting torture and enforced disappearance counters those malpractices by preventively obliging the authorities to record the treatment of those detained by them from the very beginning of the process as a check and balance against abuses. A pivotal provision of the law prohibits push-backs to a country where there is fear of torture or enforced disappearance.
Fourth, quite recently there was a national decree initiating a screening procedure for "those in need of protection" to enable them to be protected if they pass the test. That term is akin to "refugee" in International Law. The latter covers persons who cross borders due to a well-founded fear of persecution in the country of origin.
The implication from this subordinate legislation is that there must be no push-backs to countries where a refugee fears such persecution. This can also be extended to cover victims of warfare.
Fifth, even if the national law on extradition is cited to justify possible deportation or push-back of a person, it is always subject to the condition that it cannot be applied to political dissidents (who are tantamount to refugees). The Thai National Human Rights Commission has also rightly called for refugee protection.
Why, then, is there transnational repression in regard to the Vietnamese refugee above? It is suspected that cross-border pressure is at play to undermine the protection of human rights.
It is also surmised that some of the countries of the Asean region have informal agreements to assist each other which may be tantamount to transnational repression. Thailand should shun such agreements, if they exist, and abide by International Human Rights Law which offers protection against such repression.
What if the country of origin claims that the person at stake is a terrorist? Generally, International Law on refugees allows an asylum state to exclude a person from refugee status and the principle of nonrefoulement if the person has committed a serious crime in the country of origin, such as terrorism. However, that claim has to be tested objectively.
Where the state of origin is not a democracy or has an ambivalent legal system which cannot offer convincing evidence based on a transparent Rule of Law, with an independent and non-coopted judiciary and law enforcers, the initial presumption should be that the claim that the state is non-credible.
The all-too-easy-claim of "terrorist" has to be viewed with scepticism, and the person whose freedom is at stake should not be pushed back to that country.
Another challenge is the all-to-easy classification of persons who seek refuge in other countries as "illegal immigrants" since they often enter the latter without a visa or passport.
This fails to recognise that there is a difference between the illegal immigrant and the refugee. The former is still protected by the country of origin, while the latter is not protected. The latter is thus entitled to international protection for lack of national protection.
The Thai authorities should thus comply with the new law against torture and enforced disappearance which follows that call for international protection. It should desist from invoking immigration law to undermine such protection.
The legal position is also that a later law must prevail over an earlier law where there is a conflict. This principle is known as "lex posterior derogat priori"; the newer law prevails.
The age-old immigration law is subject to the anti-torture law, bolstered by the various international human rights treaties to which the country is a party.
While those considerations are premised on various laws and their preferred application, the test, in practice, is the political instruction from the top of the national system concerning whether to treat a person with leniency or not.
The Government should order its officials to abide by the considerations above clearly and emphatically.
The Vietnamese refugee mentioned should not be detained but handed over to the UN agencies in Thailand. He has already been interviewed for possible asylum in a third country, and the door should be open to him to resettle in that country.
Exemplary political leadership is thus imperative NOW. No repression, no detention, no prosecution and no deportation of the refugee, please.
Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He has helped the UN as a UN Special Rapporteur, UN Independent Expert and member of UN Commissions of Inquiry on Human Rights.