[Date Prev][Date Next][Thread Prev][Thread Next][Date Index ][Thread Index ]


/* Posted Tue 21 Oct 1997 by drunoo@xxxxxxxxxxxx in igc:reg.burma */
/* --------------" 3/3)ICJ Report on Thai/Burma 1994 "---------------- */

Part 3/3.

Prepared by Burma Sub-Committee on behalf of the International
Commission of Jurists Australian Section - WA Branch
25 March 1994.


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 [3] 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
     another state.

  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.


3.2.1 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[4] 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[5]; that no-one will be held in slavery[6]; that no-one
  will be subjected to cruel, inhuman or degrading forms of
  treatment[7]; no-one shall be subject to arbitrary arrest,
  detention or exile[8] and everyone has the right to freedom of
  peaceful assembly and association[9]. 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 [10].

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
     as prostitutes.

     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.


**** 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.

/* Endpart-3/3 */