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3/3) ICJ'94 THAI/BURMESE RELATIONS
/* Posted Tue 21 Oct 1997 by drunoo@xxxxxxxxxxxx in igc:reg.burma */
/* --------------" 3/3)ICJ Report on Thai/Burma 1994 "---------------- */
THAILAND'S POLITICAL AND ECONOMIC RELATIONS WITH BURMA:
MATTERS FOR CONCERN
Prepared by Burma Sub-Committee on behalf of the International
Commission of Jurists Australian Section - WA Branch
25 March 1994.
3. THAILAND'S POSITION AT INTERNATIONAL LAW
The discussion of Thailand's international obligations will
build upon the material presented in Section 2 of this
submission. Questions concerning Thai-Burmese economic links,
Burmese refugees and the environment will be considered.
3.1 Thai-Burmese Economic Links
3.1.1 Duty to Avoid Interference in Another State's Domestic
Thailand became a member of the United Nations and thereby
acceded to the provisions of the Charter on 16 December 1946.
Article 2 of the Charter deals with the prohibition on the
interference of any State in the domestic affairs of another.
Many of the provisions set down in the Charter are ambiguous.
As a result, from the very first session of the General
Assembly in 1946 member nations have adopted declaratory and
interpretative resolutions. There resolutions from the basis
of either the codification of international law or as
interpretations of the Articles of the Charter. The binding
legal nature of many of these declarations is a matter of
debate according to how one interprets the actions of states
in either upholding or ignoring the principles set forth in
each declaration. Some declarations however being of such
importance to the co-operation of states and maintaining
international peace and security may be considered
authoritative interpretations of the Charter and therefore
part of the Charter itself.
One of these declarations is Resolution 2625 of 1970  being
the Declaration on Principles of International Law concerning
Friendly Relations and Co-operation amongst States in
accordance with the Charter of the United Nations. It was
adopted by the General Assembly without a vote on the basis of
the common consensus amongst all members as to the importance
of its provisions.
It provides inter alia:
The principle concerning the duty not to intervene in
matters within the domestic jurisdiction of any State in
accordance with the charter.
NO State or group of States has the right to intervene,
directly or indirectly, for any reason whatever, in the
internal or external affairs of any other State. No State
may use or encourage the use of economic, political or any
other type of measures to coerce another State....
Also, no State shall..., assist,.... finance or tolerate...
armed activities ..., or interfere in civil strife in
Whilst the provisions of the Declaration are often directed
towards the illegitimacy of state-sponsored terrorism, it is
possible to argue that by analogy that it would apply to
financial and political support knowingly given by one State
to another in the abuse of human rights. In the case of
terrorism, the United States Congress has suggested that State
sponsorship would include such things as the provision of
military assistance, providing direct or indirect financial
support and the provision of political support to aid or abet
the commission of illegal acts.
3.1.2 The Issues of Thailand's Political and Financial Support
The widespread abuse of human rights in Burma is well
documented. SLORC disregard those rights stated in
international law has attracted the criticism of many nations,
including the United States and also the General Assembly of
the UNited Nations itself. As has been documented above,
Thailand has been active in politically and financially
supporting SLORC in its conflict with the ethnic minorities
and prodemocracy forces in Burma. As has also been noted
above, as a result of direct diplomatic negotiations between
the two countries, Thailand has been active in initiating
programs of control and repatriation of the Burmese people
seeking asylum in thailand. Thailand is also knowingly
participating in major works projects which will directly
effect the safety of those groups.
With reference to Thailand's international obligations, it is
directly interfering in the internal affairs of Burma by
knowingly providing political and financial support to SLORC's
efforts to subdue ethnic and pro-democracy forces, thereby
breaching a fundamental tenant of international law as
interpreted by declaration. The same obligations would also
face any other nation that provides such support.
3.2 REFUGEES AND HUMAN RIGHTS OBLIGATIONS
3.2.1 Thailand's Position on the Status of 'Refugees'
Attempts have been made over many decades to improve the lot
of certain groups of 'stateless' peoples. Most of those
efforts have been made with regard to 'refugees'. The
Convention of 25 July 1951 relating to the Status of Refugees
was primarily concerned with the fortunes of those people who
had been forced to leave their homes during the Second World
War, that is, because of the events before 1 January 1951.
Under a further Protocol in 1967 the provisions of the
original convention have been extended to cover all people
leaving their homes to seek asylum in other countries because
of a "well founded fear of being persecuted" and who are
unwilling to return because of that fear.
Thailand, like most Asian nations, is not a signatory to the
relevant international instruments on the status of refugees.
It would not appear that those instruments have acquired
sufficient status to become customary international law. It is
necessary then to consider the international law existing
before the 1951 Convention and subsequent protocol.
There has been some apprehension amongst Asian nations that
acceptance of the Convention on the Status of Refugees will
result in an increase in the number of people seeking asylum
and increased legal obligations in respect of people moving
across the border. All States at international law, because of
their territorial sovereignty, are able to exclude anyone
seeking asylum and deport any 'alien' they no longer wish to
host. there is no 'right' to asylum neither at international
law nor has one been created under Article 14 of Universal
Declaration of Human Rights. The exercise of the State's
rights to exclude 'aliens' causes serious legal and moral
problems in situations where people are seeking protection
from hostilities in their own country. Those problems are
increased when the numbers of people crossing the border
begins to take on the effect of large scale migration.
Practical and humanitarian concerns would appear to require
States to grant at least temporary refuge or 'first asylum'.
In 1989 Thailand, amongst other non-signatory nations,
accepted a UNHCR initiative guarantee that 'first asylum' and
some limited forms of protection would be available to
'aliens' from Vietnam. It is obviously limited in its
application but it does however demonstrate an acceptance of
the principle of 'first asylum' by thailand.
An 'alien' is able to take advantage of the protection of
'receiving' state from forces in their own country seeking to
forcibly repatriate them. That protection can only be lifted
in situations where extradition treaties exist or the
'receiving' State itself choses to return them. Outside any
international instrument, the 'receiving' State in which an
'alien' has gained entry may treat that 'alien in any way it
chooses but it cannot treat him or her in a way so as to
breach its international obligations. The discretion in the
State to deal with aliens is fairly broad, including the
ability to take 'alien' names and maintain a register so as to
be able to control their movements. However, the State cannot
trangress its obligation on human rights.
Under Article 55 and 56 of the Charter of the United Nations,
member nations are required to take action to achieve
"universal respect for, and observance of, human right and
fundamental freedoms for all..." The Universal Declaration of
HUman Rights ("UDHR") of 1948 has been accepted as the
authoritative interpretation of the contents of "human rights
and fundamental freedoms". The Declaration provides inter alia
that every one has the right to life, liberty and security of
person; that no-one will be held in slavery; that no-one
will be subjected to cruel, inhuman or degrading forms of
treatment; no-one shall be subject to arbitrary arrest,
detention or exile and everyone has the right to freedom of
peaceful assembly and association. Many of these provisions
have been reaffirmed in other Conventions such as the
International Convention on Civil and Political Rights.
Thailand is not however a signatory to any of these
whilst these Articles may or may not have become customary
international law, the effect of the affirmation of the
objects of the United nations means that all nations must
accept the Declaration as a guideline for the achievement of
human rights .
3.2.2 Burmese Refugees in Thailand
As a result of Thailand's reluctance to sign the relevant
instruments on the Status of Refugees, the government may
still claim the right of a sovereign nation to prevent the
entry of Burmese refugees and its right to repatriate all
Burmese refugees as 'aliens'.
Of concern also is the plight of Burmese refugees inside
Thailand. As has been noted above, Thailand's obligations to
the observance of human rights are still relevant:
Case in point: Prostitution
IN January the Human Rights Watch organisation published a
160 page report highlighting 'official' involvement in the
traffic of girls from Burma into Thailand to work in
brothels. Many of the girls are tricked into coming to
Thailand by the promise of work whilst others are brought
from their parents or used as collateral against money
lent to the parents. The report found that there was clear
evidence of official involvement in the traffic from the
earliest point. many girls have been transported from the
Burmese border by Thai police to work in brothels which are
under thai police's 'protection'. There have been reports
that Burmese girls detained by Thai police in Thongphaphom,
as "illegals", have been called out by the police to work
Late last year Thai Prime Minister chuan called for a
crackdown on the operation of the brothels. However, the
girls that were intended to be rescued by the plan have
become the victims. In police raids on brothels Burmese
girls are often arrested as being "illegal immigrants" and
detained. The girls are detained in overcrowded conditions
awaiting someone to pay their fine. thai law makes girls in
such situations exempt from detention and fines. However,
Thai police still rigidly enforce the laws against the
girls found in the brothels.
In situations where the girls are unable to pay their
fines, they are deported and forcibly repatriated. From
that point there are few options. Many girls return to
their villages to find that they are shunned by their
families and community -- cultural 'shame' will not permit
them to rejoin their community or marry. Many return to
Thailand and to the brothels.
Thai business also utilises the large pool of cheap labour
that is available with the influx of refugees. They are often
employed in appalling conditions. The Thai government's
inactivity in resolving these situations is an obvious breach
of its obligations to prevent the use of forced or indentured
labour and also its obligations to prevent cruel, inhuman or
degrading treatment. Furthermore, the thai NSC initiative to
outlaw any gathering of Burmese naitonals, as noted above, is
an infringement of the rights to free association.
3.3 THE ENVIRONMENT
**** Texts abridged ****
4.1 Given ASEAN's concern for Western opinion on improved links
with Burma, Australia should use its unique position, being
linked to the region and also other important international
powers, to mobilise opposition to Thailand's efforts to
introduce Burma to ASEAN; and\
4.2 to object in the strongest terms the inclusion of burma, at
the invitation of Thailand, as an observer at the next ASEAN
meeting in Bangkok in JUly 1994.
4.3 Whilst Thailand should be commended in its efforts to bring
peace to Burma it should be encouraged to take a different line
than simply to act as an accomplice to SLORC.
4.4 Given the importance of foreign investment to the
development of SLORC forces, Australia should encourage
Australian, regional and international governments and industry
to avoid or scale down their trading links with SLORC until
there are tangible changes in Burma. Those changes must include
the release of NLD leader DAw Aung San Suu Kyi, constructive
dialogue with ethnic nationalities and pro-democracy forces and
an end to human rights abuses in Burma.
4.5 Australia should mobilise diplomatic pressure on the Thai
government to end abuses against Burmese refugees in Thailand
such as the trade in Burmese girls for Thai brothels and the
detention of Burmese 'aliens'.
4.6 Australia, as host to large expatriate Burmese community,
must ensure that where Thailand regrettably seek to continue its
program of repatriation of Burmese refugees, Thailand receives
guarantees for the safety of those returning or that refugees
are returned to a confirmed 'safe area' on the Thai-Burma
4.7 Australia should encourage Thailand to become a signatory to
the relevant international instruments on the Status of REfugees
thereby granting greater protection to their fundamental human
rights whilst in exile and halting the thai policy of
4.8 Australia should persuade Thailand to permit the resumption
of humanitarian aid on the thai-Burma border, to return those
supplies already confiscated and rescind threats of expulsion
for NGO's crossing into Burma.
4.9 Australia, as a Charter member of the United Nations, should
persuade Thailand to adhere to the principles of co-operation
and State Sovereignty that underpin the charter and make
Thailand's direct support of SLORC illegal.
4.10 Given the great international concern for the environment,
Australia, as an environmentally responsible nation should bring
to the attention of thailand, and the world, the disastrous
environmental effects of Thai-Burmese gas and hydro-electric
4.11 Australia should encourage all environmental bodies to
visit the regions of the Salween and Moei rivers to assess the
environmental impact of the gas and hydro-electric projects.
4.12 australia, as having demonstrated its abilities in
international affairs in Cambodia should establish a similar
plan of action in order to bring peace to the Thai-Burma border.
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