Abstract
Thailand is a coastal State, and the plight of Rohingya boat refugees from Myanmar is an ongoing issue there. However, Thailand has no refugee laws and the State is also a non-State party to the 1951 Refugee Convention. Refugee issues are being treated under ad hoc decisions in Thailand; therefore, refugees have no legal status there, they are treated as illegal immigrants. Moreover, being a coastal State, Thailand rigorously controls its seas. However, Thailand signed on to core international human rights instruments which ensure protection from torture, including their guarantee of civil and political rights to all individuals within its territory. As a State-party to international maritime laws, Thailand also has obligations to assist any person at sea. Against this background, this article examines the challenges of refugee protection in Thailand, where special focus is given to the Rohingya boat refugees within an examination of its maritime laws. In conclusion, it suggests a solution for refugee protection in Thailand under the existing regime. While particular literature on the Rohingya boat refugees in Thailand is very limited, it is expected that the article will fill the gap in existing literature regarding the boat refugee issue in Thailand.
1 Introduction
No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
However, in the absence of refugee law in Thailand, Thailand signed on to the core international human rights instruments which ensure protection from torture, and the guarantee of civil and political rights to all individuals within its territory. Moreover, being a State-party to international maritime laws, Thailand has a duty to assist any person who is in distress at sea. Against this background, this article examines challenges of refugee protection in Thailand, looking at immigration law in Thailand and its refugee policy. This research places special focus on the Rohingya boat refugee issue in Thailand, where the maritime laws of Thailand are closely related. In conclusion, this article will suggest a solution for refugee protection in Thailand under the existing regime. Current research articles on boat refugees in Thailand with special focus on the Rohingya boat refugees are very limited; it is expected that this article will fill the gap in the existing literature regarding the boat refugee issue in Thailand and will provide a starting point for future research.
2 Background of Rohingya Boat Refugees
As already mentioned, the main aim of this article is to examine the protection regime of boat refugees in Thailand. At the present time, boat refugees in Thailand as well as in South-East Asia are mostly Rohingyan refugees from Myanmar who are attempting to enter neighbouring States. In general, refugees arrive through land routes by crossing borders. However, in South-East Asia (Thailand, Bangladesh and Indonesia) the situation is different. The States are coastal States and all are connected by a common sea – the Bay of Bengal; therefore, due to their geographic location the Rohingya refugees use both land and sea routes to get to nearby countries in order to escape persecution.4 Therefore, before moving to the discussion of the refugee laws and policies of Thailand, to provide a clear overview of the boat refugee issue in Thailand, a brief background of the Rohingya refugees is given.
The genesis of the crisis lies in the question of citizenship of the Rohingya. Since the Burmese government does not accept the Rohingya as one of the countries’ national races, a majority of the Muslims living in Rakhine are today de facto stateless and living with a deep uncertainty about their status.9
The minority identity of the Rohingya people has been re-considered by the Myanmar governments from time to time but with a narrow focus on four major factors. These are: (i) the development of Burmese nationalism; (ii) the politicisation of identity of the Buddhist majority; (iii) the removal of the citizenship status of Rohingya ethnic people and (iv) the creation of ethnic divisions in Myanmar society whereby non-Buddhists, specially, Rohingya Muslims, are considered non-citizens.10
In fact, citizenship is a legal status that forms a connection with a State under which a citizen enjoys rights and protection from the State. Even though there is no single legislation in Myanmar that clearly declares the Rohingya as stateless, the narrow and restrictive views of laws and policies positions them as a stateless ethnic group.11
As a result, the Rohingya became an unrecognised ethnic minority group and stateless, whereby persecution and torture by the Myanmar government agencies are common issues in their lives according to UN reports.12 The Report of the Special Rapporteur on the Situation of Human Rights in Myanmar noted that ‘the Special Rapporteur has continued to receive allegations of serious human rights violations being committed during that police operation, which also involved Rakhine mobs, including allegations of the brutal killing of men, women and children, sexual violence against women and the looting and burning of properties’.13 In 2017, the UN established a ‘Fact-Finding Mission on Myanmar’ to examine allegations of human rights violations in Myanmar against the Rohingya people. The Fact-Finding Mission found sufficient evidence of violation of human rights including genocide against the Rohingya people.14 Later, based on the UN report, Gambia filed a genocide case against Myanmar and on behalf of the Rohingya ethnic people in the International Court of Justice (icj) under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.15 Following the preliminary hearing the icj trial is in progress. Accordingly, the Rohingya issue is not only limited within the national boundaries of Myanmar; it is now an international concern of ongoing gross violations of human rights.16
3 Immigration Law in Thailand
Thailand is highly experienced in dealing with refugee issues. In 1965, after the change in the governments of the neighbouring States (Laos, Vietnam and Cambodia), mass influxes of refugees came to Thailand.17 Thereafter, in 1975, after the Cambodian-Vietnamese War, South East Asian States faced one of biggest refugee flows in world history, known as the Indochinese Refugee Crisis. Around three million asylum seekers from Laos, Vietnam and Cambodia fled to neighbouring countries over the next two decades. At that time, Thailand carried the burden of refugees, with the largest number from Cambodia.18 During this period, Thailand alone provided shelter for around 650,000 refugees on a temporary basis.19
In reality, Thailand is neither a State party to the international refugee law nor the 1954 Stateless Convention. Moreover, domestic refugee law is absent in Thailand.20 The Constitution of Thailand of 2017 is the highest law of the land.21 However, the Constitution only states that nationality by birth cannot be revoked.22 The Constitution of Thailand has no other provision regarding acquisition of nationality or the status of refugees. As a consequence, due to the absence of any particular refugee law, the refugee issue is considered under the Immigration Act 197923 and Nationality Act 196524 in Thailand.
One of the main reasons for Thailand’s non-accession to the 1951 Refugee Convention is that – it believes that the incorporation of the 1951 Refugee Convention will restrict its national sovereignty and national security.25 Moreover, Article 38 of the 1951 Refugee Convention asserts that any dispute regarding interpretation or application of the Convention shall be referred to the International Court of Justice (icj). However, in the past the icj’s decision had not been a pleasant experience for Thailand. In the famous Temple of Preah Vihear Case,26 the icj’s decision was given in favour of Cambodia, not Thailand. This is one of the main reasons for Thailand not acceding to international refugee legislation.27
In Thailand, a non-citizen is considered an ‘alien’ under its immigration law. According to s4 of the Immigration Act of 1979, ‘Alien’ means ‘a person who does not have Thai nationality’. Section 7 of the Act provides vast powers to the Immigration Commission to grant permission to stay, and to revoke the residency of aliens in Thailand.28 According to s12(1) of the Immigration Act of 1979 an alien will be excluded from entering the Kingdom of Thailand if he/she has no valid passport or travel document or a visa stamped by a Thai authority.29 Therefore, Thai border guards have unlimited authority not to allow refugees without a valid document. Moreover, according to s16 of the Immigration Act, on the grounds of the national interests or public order, any non-citizen or group of non-citizens should not be permitted to enter into the Kingdom of Thailand, even if holding a valid document. However, pursuant to s17 of the Immigration Act, in a special case any alien/non-citizen or any group of aliens/non-citizens may be permitted to enter and remain in the Kingdom under certain conditions. Thus, under the law, the government enjoys discretionary powers over the entry of refugees in Thailand – in other words, it has power to make ad hoc decisions. This issue is further discussed in the following section of this research (Refugee Policy in Thailand).
Any alien entering or staying in the Kingdom without permission, or with permission that is expired or revoked, may be repatriated from the Kingdom by the competent official.
When the competent official discovers any illegal alien or has reason to suspect any alien of being illegal for entering into the Kingdom, the competent official shall have authority to order the owner or person in charge to the conveyance to detain the said alien in the conveyance or to send the said alien to any place for the purpose of interrogation by the competent official or send the said alien out of the Kingdom.
Moreover, if an alien/non-citizen remains without permission in Thailand, he/she shall be punished with imprisonment of up to two years or a maximum fine of 20,000 Thai Baht or both.30
According to the unhcr, Thailand regularly detains asylum seekers including children for violations of immigration law who arrive without valid documents and/or visas.
Absent a national asylum/protection framework, refugees and asylum-seekers without a valid visa are treated as ‘illegal aliens’ subject to arrest and detention for illegal entry/stay under the 1979 Immigration Act. Despite being issued pursuant to unhcr’s mandate, which was established by the General Assembly, unhcr refugee and asylum-seeker documentation (certificates) are not recognized by the Thai authorities.31
In the same vein, Amnesty International noted that Thai law neither provides any legal status nor any protection measure to refugees. Refugees are considered similarly to all other irregular migrants as illegal, where ‘arrest, detention and deportation’ are common practices.32
The Nationality Act of 1965 is also a relevant legislation in Thailand regarding the refugee issue.33 Under the Nationality Act, a person who does not have Thai nationality is treated as an ‘alien’ (s 4). Although s7 provides for the acquisition of Thai nationality by birth (by the amendment of 2008), however, if the child’s parents are alien at the time of the birth of the child, the child will not receive Thai nationality under the law.34 Moreover, if an alien woman marries a Thai national and applies for Thai nationality, the granting or refusal of permission for acquisition of Thai nationality depends on the discretion of the Minister (s9). Consequently, this study contends that even though Thailand is a party to the Convention on the Rights of the Child, which provides universal safeguards to all children of the world including refugee children,35 due to the discriminatory provisions of the Nationality Act, refugees and refugee children have no nationality rights in Thailand; a stateless parent’s child becomes stateless, having no legal status, and is always treated as an illegal person in Thailand. This is another challenge to refugee protection in Thailand. In addition, this study also submits that under the present international law, a State cannot ignore its obligation to non-citizens by labelling them as illegal persons, aliens or non-citizens; the rights of all, including the non-citizens, are ensured by international law and in international human rights instruments.36 Therefore, this article suggests that even though refugee protection law is absent in Thailand and Thailand strictly controls the arrival of refugees under the Immigration Act 1979 and the Nationality Act of 1965, Thailand cannot totally ignore its international obligation to the refugees. Therefore, Thailand has obligations to the boat refugees.
The present section examines the immigration law of Thailand and focuses on how the existing Thai legislations strictly controls the admission of non-citizens and refugees. The following section examines the Refugee Policy in Thailand, with a particular focus on Thailand’s policy to boat refugees.
4 Refugee Policy in Thailand
Officially, the term ‘refugee’ has never been used in Thailand; instead of refugee, ‘displaced persons fleeing fighting’ is used; and their official status is ‘illegal immigrants’. The refugee camps are even known officially as ‘temporary shelters’. In practice, the Myanmar refugees are accepted as de facto ‘refugees’. The general policy of Thailand is to assist the displaced persons on a humanitarian basis. The policy offers ‘temporary shelter’ and provides that people are not sent or pushed back until circumstances change.37
According to the latest report of the unhcr (2021) there are a total of 650,670 refugees being given shelter in Thailand, among them 91,408 Myanmar refugees.38 All refugees reside in one of the nine camps on the Thai-Myanmar border and are of mainly Karen, Karenni and Burmese ethnicity, apart from the Myanmar refugees. Many of these refugees arrived in Thailand via the eastern border around 30 years ago, because of their need for autonomy, having suffered ongoing violations of their human rights in Myanmar.39 Around that time, in 1980, Thai Prime Minister Prem Tinnasulanon announced that Thailand did not have a policy for Burmese refugees on the Thai-Burmese border. Subsequent governments have perpetuated the same lack of specific policy.40 Interestingly, according to the reports of the Border Consortium41 and the unhcr,42 there is no clear data on the Rohingya refugees in the camps. Therefore, it is unclear exact how many ethnic Rohingya are living in the camps of Thailand as registered refugees.
According to Human Rights Watch, the Thai government imposes strict restrictions on refugees in the camps. The government imposes restrictions on movement and income and there is a lack of quality education available for them. If any refugee tries to leave a camp without permission, then their refugee status is forfeited and they are arrested; they are then declared an ‘illegal immigrant’ and sent to detention and later may be, deported.43
In the past, between 1940 and 1950, Thailand supported the independent movements of French colonies in South East Asia and sheltered refugees from Cambodia, Laos and Vietnam; however, many of the refugees had communist affiliations. Thailand came to realise that communist sympathies would only increase within its Chinese and Vietnamese ethnic communities, and changed its view, imposing a restrictive policy on the refugees. As a result, Thailand closed its borders and limited the movement of refugees. It is estimated that during the First Indochinese War (1946–1954) around 50,000 refugees were given shelter in Thailand.44
In 1975, after the Second Indochinese War, the South East Asian States45 faced a refugee flow of around three million from Cambodia and Vietnam for the next two decades.46 The refugees mainly arrived by boat to the neighbouring States and were accordingly called ‘boat people’. By the end of 1978, nearly 62,000 Vietnamese boat people were sheltering in camps all over South East Asia.47 Initially, the boat people were welcomed by the South East Asian States.48 Later, the asean States of the region (Indonesia, Malaysia, the Philippines, Singapore and Thailand) argued that they would not accept any refugees; consequently these States refused disembarkation to the boat people, and adopted a ‘push-back policy’ on the grounds of national security.49 The States of the region (particularly Indonesia, Malaysia, the Philippines, Singapore and Thailand) feared that this refugee flow would lead to a greater influx, and claimed that the ‘boat people’ issue was a global crisis, so therefore a global initiative would be needed.50 Later, after assurances from the unhcr and other Western countries (influenced by the United States), the South East Asian States (mainly Hong Kong, Indonesia, Malaysia, the Philippines and Thailand) allowed the boat refugees in on a temporary basis. By June 1979, 550,000 Indochinese refugees received asylum in South East Asia as first asylum countries on an ad hoc basis. Thereafter, via the 1989 Geneva Conference, a ‘Comprehensive Plan of Action’ was adopted by 70 States, which moved to a new approach to solve the Indochinese refugee crisis.51 As a result, it could be suggested that Thailand had in the past been quite liberal towards boat refugees; the Thai government had provided shelter for the boat refugees and put pressure on the Western world to solve the boat people crisis.
However, even though during the initial influx of the Indo-Chinese refugees Thailand had opened its doors (1975–1980), it later changed its policy.52 On 1 January 1981, Thailand adopted a new policy towards refugees: the policy of ‘humane deterrence’.53 Its aim was simply to halt the influx of refugees into Thailand. Under the policy, ‘austerity camps’ were built and the resettlement of refugees was refused.54 This was is contrast to the previous treatment of Indo-Chinese refugees, when Thailand had provided shelter to 370,000 Cambodian refugees for more than 10 years.55 Later, by way of a tripartite Memorandum of Understanding (mou) among Thailand, Cambodia and the unhcr, the refugees had been repatriated to Cambodia in a peaceful manner.56
Currently the influx of Rohingya refugees from Myanmar use both land and sea routes into Thailand, in order to escape from persecution. The boat refugees also use Thailand as a transit route for Malaysia, Indonesia and Australia.57 However, Thailand controls its sea areas very strictly; traditionally Thai governments have followed the ‘push back’ (refoulement) to sea policy.58 As a result, very few refugees are able to access Thailand by sea. As a consequence, the number of Rohingya boat refugees in Thailand is substantially smaller than other States of the region. It is estimated that around 3,000 Rohingya refugees have lived informally in Thailand for 20 years, with the majority living in Bangkok.59 Nonetheless, in 2017, when 700,000 refugees fled to neighbouring Bangladesh from Myanmar, there was no noted increase in Rohingyan refugees in Thailand due to its strict policy.60
Thailand has no formal refugee determination procedure; it allows the unhcr to take initiatives to resettle the refugees in third party countries. However, Amnesty International observes that ‘this process is slow and uncertain’; it only prolongs the residency of refugees in Thailand without any deadline.61 Moreover, the Thai government’s refugee policy does not welcome their local settlement.62
In addition, forcibly returning refugees at the request of foreign States is a common practice in Thailand. In recent times, on several occasions, Thailand has deported asylum seekers or refugees to the requesting States, which is a violation of the customary principle of the non-refoulement norm.63
Despite decades of experience with hosting millions of refugees, Thailand’s refugee policies remain fragmented, unpredictable, inadequate and ad hoc, leaving refugees unnecessarily vulnerable to arbitrary and abusive treatment.65
Nonetheless, in January 2017, the Thai government approved its Cabinet Resolution No. 10/01 B.E. 2560 – Committee for the Management of Undocumented Migrants and Refugees for developing a refugee-screening mechanism and a framework for undocumented migrants and refugees in Thailand.66 The unhcr welcomed the initiative. In a statement, the unhcr noted that ‘This Cabinet action represents an important and concrete step towards creating an appropriate regulatory framework for refugee management and protection in Thailand’.67 However, the progress of implementation of the resolution seems very slow.68 Not only that, between 28 August and 12 October 2018, Thai officials arrested more than 200 refugees and asylum seekers who had arrived from Cambodia, Vietnam, and Pakistan on the grounds of being illegal immigrants. They were detained in the Immigration Detention Centre in Bangkok and sentenced to deportation.69
In addition, since July 2017, the Thai authorities have been running ‘Operation X-Ray Outlaw Foreigner’. The aim of the operation is to arrest and detain illegal migrants. Already thousands of undocumented refugees, asylum seekers and foreigners (without visas) have been arrested.70 The operation is creating serious violations of the human rights of vulnerable people as well as breaching Thailand’s international obligations. Human Rights Watch suggests that ‘The policy of the Royal Thai Government towards Burmese refugees and migrants is in a state of flux’.71 Amnesty International claims that Operation X-Ray Outlaw violates Thailand’s international human rights obligations including the customary principle of non-refoulement.72
On 25 July 2019, Thai Prime Minister General Prayut Chan-ocha, while presenting the government’s policy statement to Parliament, made a discriminatory statement about Rohingya refugees. The Prime Minister stated: ‘Speaking of the Rohingya, I am sympathetic. But their looks, their appearance is very different from us. If you can accept to have more of these people in Thailand, that is up to you.’ Human rights groups strongly criticised the statement and noted that this comment demonstrates Thailand’s reluctance to support Rohingya refugees.73 One of the reasons behind Thailand’s reluctance is the Rohingyas’ ‘statelessness’. Although Thailand allows thousands of immigrants from Cambodia, Laos and Myanmar to live and work in Thailand after undergoing a national verification and registration process, due to their non-citizenship status, the Rohingyas are discriminated against and unable to legally work.74
On 21 January 2019, Deputy Prime Minister General Prawit Wongsuwan signed a Memorandum of Understanding on the Determination of Measures and Approaches Alternative to Detention of Children in Immigration Detention Centres (mou of 2019) with the heads of seven government agencies to ensure humanitarian principles are followed.75 The objective of the mou of 2019 is to provide a common guideline to all government organisations regarding non-detention of refugee children under the age of 18. The mou was an outcome of the Thai Prime Minister’s commitment to the non-detention of refugee children which he made at the Leaders’ Summit on Refugees on 20 September 2016 in New York.76
However, under the existing policy in Thailand, undocumented persons including children who are not registered with the unhcr can be sent to the Immigration Detention Centres.77 In Thailand unhcr cardholders are also sent to the detention camps for various reasons. The unhcr’s id card does not provide any legal protection to the refugees; it only indicates that the concerned person needs protection under the ‘mandate’ of the unhcr.78 In fact, the unhcr’s id document provides ‘limited protection against arrest and refoulement’ outside the camps in Thailand. In practice, ‘arrest, and non-deportation depends largely on the goodwill of the Thai official(s)’.79
Relatively recently, on 28th October 2019, a representative from Thailand’s Immigration Bureau, in a closed-door briefing, discussed the development of a refugee policy with civil societies and stated that the government was working on a ‘National Screening Mechanism’ for refugee protection.80 Later, on 24th December 2019, the long-awaited National Screening Mechanism (nsm) for refugees was finalised and approved by the Thai Cabinet.81 Although this is a positive step towards a refugee protection system in Thailand, human rights groups claim that Thailand was intentionally delaying the implementation of a refugee screening mechanism.82 Indeed, to date there has been no visible step taken towards implementation of this refugee mechanism in Thailand, and so the lives of refugees in Thailand remain in limbo. Moreover, it is too early to judge the initiative. We will have to wait for the future full implementation of the policy.
5 Maritime Law and Challenges to Boat Refugees in Thailand
As discussed earlier, Rohingya refugees did not just arrive in Thailand by land but also attempted to cross the Bay of Bengal and the Andaman Sea. However, for decades Thailand has been strictly maintaining its ‘push back to sea’ policy for refugee boats.83 In 2009, the Thai authorities pushed back around 1,000 Rohingya people to the high seas and it was estimated that 530 people either died or were lost at sea.84 During the boat refugee movement of 2015, Thailand maintained its ‘deterrence policy’ at sea.85 However, at that time due to international pressure, Thailand agreed to provide ‘temporary shelter’ to the Rohingya boat refugees.86 On 29 May 2015, in a ‘Special Meeting on Irregular Migration in the Indian Ocean’, Thailand committed to provide humanitarian assistance to the boat people at sea and also agreed that a regional response was essential in the situation.87 Nevertheless, Thailand again continues its interception of refugee boats at sea policy. In 2017 the Rohingyan influx fled to neighbouring Bangladesh, as Thailand continued its ‘push-back’ policy.88 The policy is so strict that the Thai military fired shots at a refugee boat to make it turn back to the sea.89
In fact, the Thai government does not want to accept any Rohingya refugees. Thailand follows ‘a three-step action plan’ for boat refugees. First, the navy intercepts any Rohingyan boat that is close to Thailand’s coastal zones. Secondly, after providing fuel, food and water, the navy directs the boat to Malaysia’s or Indonesia’s territory. Thirdly, if any boat breaches these directions and tries to arrive on land, its Rohingyan passengers are put in unlimited detention.90
While there is no law in Thailand dealing specifically with refugees, Thailand can justify its push back at sea policy under domestic proclamations and laws that include the Territorial Water,91 Contiguous Zone92 and Exclusive Economic Zone proclamations.93 Moreover, Thailand is a party to the UN Convention on the Law of the Sea (unclos iii);94 Thailand has the right to control its sovereign jurisdiction in the territorial and contiguous zones; specifically, Thailand can take necessary measures to stop any ship/boat in violation of immigration and domestic law.95
Thailand however has no special enforcing agency for maintaining law and order at sea. Since 1992 the Royal Navy has operated a Coast Guard Squadron to patrol the waters and to assist people at sea.96 However, there is no permanent Coast Guard agency in Thailand.97 Generally, the Royal Thai Navy and Marine Police work as a coast guard. The Thai government considers that one single body is not sufficient to control its 3,219 kilometre of coastline on the Andaman Sea, Malacca Strait and South China Sea.98 Therefore, six enforcement agencies are involved in controlling the territorial sea zones and the exclusive economic zone of Thailand. These agencies are the Royal Thai Navy, the Fishery Department, the Coastal and Marine Resources Department, the Marine Department, the Marine Police and the Custom Department.99
In 1997 the Thai Maritime Law Enforcement Coordinating Centre (thai-mecc) was established under the Office of the National Security Council, which is operated by the Royal Thai Navy. Its aim is to coordinate the maritime agencies. Its mandates are: to share maritime information among the agencies; to prevent piracy, human trafficking, illegal migrants, smuggling, terrorism and illegal fishing; and to provide assistance to search and rescue operations at sea.100 However, the thai-mecc was an ad hoc organisation, with fewer controlling powers over the other agencies. Therefore, in 2018 the thai-mecc was upgraded to the Thai Maritime Enforcement Command Centre (New thai-mecc) and accordingly, the old thai-mecc ‘Coordinating Centre’ was transformed into a new maritime ‘Command Centre’. The New Thai-mecc has been established to centralise the maritime enforcement bodies; its objective is to ensure security and national interest at sea including search and arrest for violation of law.101 As a result, the New thai-mecc enjoys vast powers to secure its maritime zones. In consequence, it is very challenging and difficult for boat refugees to reach Thailand by sea.
Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him.
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
In this context, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is also important. Article 3(1) provides that: ‘No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ Moreover, since the Rohingya are a persecuted and vulnerable group of people, they have the right of innocent passage under the law of sea (Article 17 of unclos iii). And therefore, Thailand’s push back and interception at sea policy is a clear violation of the norm of international law.
Now the next question to be considered is: does Thailand have any obligation to ensure the protection of boat refugees under international law?
6 International Law in Thailand
The 2017 Constitution of Thailand is the highest law in Thailand. It provides that a person shall enjoy rights and liberty, and also ensures that torture, brutal acts, arrest and detention, inhumane and cruel punishment are not being permitted (s28). Thailand is obliged to promote engagement in work (s 74) and quality education for all children (s54). Moreover, the constitution brings that ‘The State should promote and provide protection for different ethnic groups to have the right to live in the society according to the traditional culture, custom and ways of life on a voluntary basis, peacefully and without interference…’ (s70). In this respect, it is to be noted that Thailand is a State party to the seven core international human rights treaties: 1984 Convention Against Torture, 1979 Convention on the Elimination of All Forms of Discrimination against Women, 1989 Convention on the Rights of the Child, 1966 International Covenant on Civil and Political Rights, 1965 International Convention on the Elimination of all Forms of Racial Discrimination, 1966 International Covenant on Economic, Social and Cultural Rights and 2006 Convention on the Rights of Persons with Disabilities.103 Therefore, according to its international commitments and obligations, Thailand is committed to ensure human rights to all. In the same vein, Thailand cannot ignore its responsibilities to the boat refugees. Thailand is a party to the solas Convention 1974,104 and the International Maritime Organization (imo) since 1973;105 consequently, Thailand is obliged to follow the international maritime conventions and imo guidelines. The International Maritime Organization’s (imo) Guidelines on the Treatment of Persons Rescued at Sea106 provides humanitarian obligations and guidance to the governments and shipmasters in relation to treatment of persons rescued at sea, which states that all persons in distress at sea should be assisted without delay.
The obvious next question is does the international law have any effect in Thailand? Section 178 of the Thai Constitution outlines the procedure of international treaty ratification. Section 178 has two phases. First, the King has the Royal Prerogative to sign peace and international treaties. Secondly, if a treaty requires implementation, then it must be approved by the National Assembly. Thus, according to the text of s178, Thailand is a dualistic State; thus international law has no direct effect on Thailand.107 According to general practice, domestic laws always take precedence in Thailand. The courts of Thailand consider the international law only if it is incorporated into the domestic legal system; mere ratification of a treaty is not enough.108 However, s34 of the Civil Procedure of Thailand prescribes that ‘the Court shall, in the absence of any international agreement or provision of law governing the matter, comply with the general principles of international law’.109 This means that ‘the general principles of international law’ shall be considered as a last resort of law in Thailand, if no other option is available. However, the direct implication of customary international law is an undecided issue in Thailand 110
Nonetheless, apart from signing on to the core human rights treaties, Thailand has also signed the 1966 Bangkok Principles on Status and Treatment of Refugees111 and asean Human Rights Declaration of 2012.112 Even though these two instruments are not legally binding, Thailand cannot ignore its human rights obligations to refugees under customary international law. Article ii(1) of the 1966 Bangkok Principles affirms that ‘Everyone without any distinction of any kind, is entitled to the right to seek and to enjoy in other countries asylum from persecution’. Article iii(1) provides that ‘No one seeking asylum in accordance with these Principles shall be subjected to measures such as rejection at the frontier, return or expulsion.’ Article 16 of asean Human Eights Declaration maintains that: ‘Every person has the right to seek and receive asylum in another State in accordance with the laws of such State and applicable international agreements.’
In this context, Andrew G. Pizor remarkably notes that if a State signs on to human rights treaties and guarantee to respect the treaties’ provisions, at that point under customary international law the State is obliged to protect these specific human rights.113 Again, Louis Henki in his article ‘Human Rights and State Sovereignty’ suggests that international law has been developed from two basic sources: customary law and treaty law.114 Accordingly, under customary international law, a State is obligated to protect all the people (including foreign nationals) in accordance with international law.115 Moreover, at present the majority of the States are parties to the 1951 Refugee Convention and the non-refoulement principle is being considered as customary international law. Therefore, this research suggests that even though Thailand is not a party to the international refugee convention, under customary international law Thailand has international obligation to protect the boat refugees.116 Furthermore, if a State signs on to any international treaty, then it is a legitimate expectation that the signatory State will follow the treaty obligation and ensure the international commitment.117
In addition, apart from its customary international law, Thailand has already given its consent to the core human rights treaties (particularly, Convention Against Torture 1984; Convention on the Rights of the Child 1989; International Covenant on Civil and Political Rights 1966; International Convention on the Elimination of all Forms of Racial Discrimination 1965; and International Covenant on Economic, Social and Cultural Rights 1966), therefore, under international law, Thailand has an obligation to protect refugees. Accordingly, Thailand should stop pushing back the refugee boats to sea. Moreover, Thailand has been allowing shelter to refugees on its land for more than four decades; thus, even if there is no formal refugee law in Thailand, Thailand has been providing shelter to refugees as a customary State practice.
7 Conclusion
Refugee protection law exists in a vacuum in Thailand. The Immigration Act 1979 and Nationality Act 1965 are the main laws for dealing with refugee and immigration issues where authorised officers enjoy vast powers of decision making. Nevertheless, Thailand has a long history in refugee protection. During the Indo-Chinese refugee crisis, Thailand provided shelter to thousands of boat refugees under an executive decision. However, even now thousands of refugees are housed in various camps. Many of them are housed in detention camps as ‘illegal immigrants’. However, Thailand did adopt its Cabinet Resolution 10/01 and an mou for ensuring the rights of genuine refugees. Even though, as a coastal State, Thailand strictly controls its long maritime zones through various maritime laws, but during the Bay of Bengal and Andaman Crisis of 2015 Thailand demonstrated its humanitarian commitment to the Rohingya boat refugees under customary international law. In addition, under the UN Convention on the Law of the Sea, Thailand has an international obligation to assist the boat people. While Thailand signed up to the major international human rights instruments, specially the Convention Against Torture (cat), Thailand is also under international obligation not to return, expel, extradite or transfer any person where there are substantial grounds for believing that they would be in danger of being subjected to torture.
Besides this, according to the International Covenant on Civil and Political Rights, Thailand is obliged to respect and ensure the rights of all individuals within its territory and jurisdiction. Being party to the asean Human Rights Declaration, Thailand is also committed to respect the Universal Declaration of Human Rights and the rights of refugees in accordance with the international laws.
Therefore, it is suggested that even though refugee law is absent in Thailand, under international human rights instruments, international maritime law and under the provision of the asean human rights, Thailand has an international obligation to respect, protect and rescue the refugees. Therefore, any rejection or pushing back to sea of boat refugees will violate the customary norm of non-refoulement, which would create a poor example and set a bad precedent for the rest of the world.
The 1951 Convention Relating to the Status of Refugees, 189 unts 137 (The 1951 Convention).
1967 Protocol Relating to the Status of Refugees, 606 unts 267 (1967 Protocol).
unhcr, States Parties to the 1951 Convention Relating to the Status of Refugees <https://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf> accessed 1 March 2022.
H. Al Imran, ‘Rohingya Boat Refugees at Bay of Bengal and Obligations of the States under Soft Law: The General Principles of International Law’, 43: 1 Liverpool Law Review (2022) pp. 1–31.
J. Alam, ‘The Current Rohingya Crisis in Myanmar in Historical Perspective’, 39:1 Journal of Muslim Minority Affairs pp. 1–25, pp. 3.
Ibid. pp. 4–7.
The Union Citizenship Act 1948 (Act No. lxvi of 1948.), (The Citizenship Law of Burma), s. 3(1) states: ‘…“any of the indigenous races of Burma” shall mean the Arakanese, Burmese, Chin, Kachin, Karen, Kayah, Mon or Shan race and such racial group as has settled in any of the territories included within the Union as their permanent home from a period anterior to 1823 A. D. (1185 B.E.).’
The Burma Citizenship Law 1982, adopted in 15 October 1982.
A. Parashar and J. Alam, ‘The National Laws of Myanmar: Making of Statelessness for the Rohingya,’ 57:1 International Migration (2019) pp. 94–108, pp. 94.
Jobair Alam, The Rohingya of Myanmar: Theoretical Significance of the Minority Status,’ Asian Ethnicity (2018) 19(2) 180–210, 180–181.
A. Parashar and J. Alam, supra note 9, pp. 103.
See, Report of the Special Rapporteur on the Situation of Human Rights in Myanmar, United Nations, General Assembly, Resolution A/hrc/25/64 (2 April 2014); Situation of human rights in Myanmar, United Nations, General Assembly, Resolution A/res/70/233 (4 March 2016).
Report of the Special Rapporteur on the Situation of Human Rights in Myanmar, United Nations, General Assembly, Resolution A/hrc/25/64, para. 47.
United Nations Human Rights Council. Independent International Fact-Finding Mission on Myanmar. <www.ohchr.org/en/hrbodies/hrc/myanmarffm/pages/index.aspx>, visited on 30 March 2022.
icj. 11 November 2019. The Republic of the Gambia institutes proceedings against the Republic of the Union of Myanmar and asks the Court to indicate provisional measures’ (Press Release, No. 2019/47). <www.icj-cij.org/en/case/178>, visited on 30 March 2022.
M. J. Alam, ‘The Rohingya Minority of Myanmar: Surveying Their Status and Protection in International Law’ 25:2 International Journal on Minority And Group Rights (2018) pp. 157–182, pp. 159.
V. Muntarbhorn, The Status of Refugees in Asia (Oxford: Clarendon Press 1992) pp. 127.
unhcr, The State of the World’s Refugees 2000: Fifty Years of Humanitarian Action (Oxford University Press, 2000) pp. 79 and 91.
Ibid. 98.
unhcr, Submission on Thailand, For the Office of the High Commissioner for Human Rights’ Compilation Report, Universal Periodic Review (2nd Cycle, 25th Session, 2016) <https:/uprdoc.ohchr.org/uprweb/downloadfile.aspx? filename=2709&file=EnglishTranslation>, visited on 30 March 2022.
In Thailand, the first constitution was adopted in 1932, and the latest constitution was adopted in 2017, taking effect on 6 April 2017. It is to be noted that, in less than a century, the latest constitution of Thailand is the 20th constitution of the land. The new constitution was criticized by international media. J. Head, ‘Thailand’s Constitution: New Era, New Uncertainties’, bbc (online, 7 April 2017) <www.bbc.com/news/world-asia-39499485>, visited on 30 March 2022.; O. Holmes, ‘Thailand’s King Signs Constitution that Cements Junta’s Grip’, The Guardian (online, 6 April 2017) <www.theguardian.com/world/2017/apr/06/thailand-king-signs- constitution-path-polls-election>, visited on 30 March 2022.
Section 39 of Constitution of Thailand (2017) states: ‘The revocation of Thai nationality acquired by birth shall not be permitted.’
Immigration Act B.E. 2522 (1979). [Thailand], 30 May 1979.
Nationality Act, B.E. 2508 (as last amended by Nationality Act (No. 4) B.E. 2551) [Thailand], B.E. 2508, 21 July 1965.
Muntarbhorn, The Status of Refugees in Asia (no 17) 132.
Temple of Preah Vihear (Cambodia v Thailand) [1962] icj Rep 6; S. Mibling, ‘A Legal View of the Case of the Temple Preah Vihear’ in World Heritage Angkor and Beyond: Circumstances and Implications of UNESCO Listings in Cambodia (Göttingen University Press, 2011), pp. 57–67.
Muntarbhorn, supra note 17, pp. 132.
Particularly, s 7(1) of the Immigration Act B.E. 2522 (1979) states: ‘The Immigration Commission have powers to revoke the permission of temporary stay of an alien in the Kingdom under Section 36.’ Section 36 provides: ‘Where there is a proper reason, the Director General or the Immigration Commission shall have power to revoke permission previously authorized the alien to stay temporary in the Kingdom …’. Moreover, s 7(2) states that the Immigration Commission can revoke the permission for residency in the Kingdom under s 47. Section 47 declares: ‘The alien who is allowed to take up residence in the Kingdom must apply for a Residence Certificate from the Director General or from a competent official deputized by the Director General within 30 days from the date receiving written notification from a competent official … If the alien concerned fails to apply for a Residence Certificate within prescribed period of time, under … this Section, the Immigration Commission may hold back issuing of permission to reside in the Kingdom.’
However, there are some exceptions. According to s 13, aliens shall be exempted from requirements to have a passport or travel document in certain circumstances: (1) Person in charge of or the crew of a maritime or air conveyance making a call at port of entry, station or locality in the Kingdom and exiting therefrom. For the purpose of controlling such persons, the competent official may issue a certificate for them to hold in accordance with the form as prescribed in the Ministerial Regulations. (2) A citizen of a country with its boundaries adjacent to Thailand making a temporary journey across the border in compliance with the agreement between the government of Thailand and the government of that country. (3) A passenger of an international train holding a through ticket and making a transit journey across Thailand in compliance with the agreement between the government of Thailand and the government of the country concerned, including the person in charge and crew of such train.
Section 81 of the Immigration Act 1979 provides: ‘Any alien staying in the Kingdom without permission, or with expired or revoked permission, shall be punished by imprisonment not exceeding two years or a fine not exceeding twenty thousand baht or both. Moreover, this research further notes that, s 61 to s 84 deals with the penalty provisions of the Act that is applicable to an alien for the violation of the Immigration Act 1979.’
unhcr, Submission for the Office of the High Commissioner for Human Rights’, supra note 20, pp. 10.
Amnesty International, ‘Rohingya Fleeing Myanmar Face Difficulties in Thailand’, (Web Page, 29 September 2017) <www.amnesty.org/en/latest/news/2017/09/rohingya- fleeing-myanmar-face-difficulties-in-thailand/>, visited on 30 March 2022.
Nationality Act B.E. 2508 (1965), as amended by Act No. 2 and Act No. 3 of B.E. 2335 (1992) and Act No. 4 B.E. 2552 (2008).
Section 7 states: ‘A person born within the Thai Kingdom of alien parents does not acquire Thai nationality if at the time of his birth, his lawful father or his father who did not marry his mother or his mother was: (1) the person having been given leniency for temporary residence in Kingdom as a special case; (2) the person having been permitted to stay temporarily in the Kingdom; (3) the person having entered and resided in the Thai Kingdom without permission under the law on immigration.’
Convention on the Rights of the Child 1989, Article 7(1) ensures that the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible. State parties shall ensure the implementation of these rights. Moreover, Article 22(1) provides that states parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law.
Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live, G.A. res. 40/144, annex, 40 UN gaor Supp. (No. 53) 252, UN Doc. A/40/53 (1985); Nottebohm Case (Liechtenstein v Guatemala) [1955] icj 1. Also see, section 6: ‘International Law in Thailand’ of this paper for discussion on international human rights instruments.
H. Lang, ‘The repatriation predicament of Burmese refugees in Thailand: A Preliminary Analysis, unhcr (Working Paper No. 46, New Issues in Refugee Research) <www.refworld.org/pdfid/4ff5661a2.pdf>, visited on 30 March 2022.
unhcr, ‘Thailand: Fact Sheet’ (31 December 2021) <www.unhcr.org/th/wp- content/uploads/sites/91/2022/01/DRAFT_MCO-Factsheet_31-December-2021– 4.pdf>, visited on 30 March 2022.
unhcr, Refugees in Thailand <www.unhcr.or.th/en>, visited on 30 March 2022. See also, A. Okudaira1 and H. Nasu, ‘Revisiting the Concept of Protection in International Refugee Law: Implications of the Protracted Refugee Situation on the Thai-Myanmar Border, in A. Francis, R. Maguire and C. Sampford (eds), Protection of Refugees and Displaced Persons in the Asia Pacific Region (Routledge, 2013), pp. 163.
Although it has been alleged that Thailand secretly provides logistic supports to the minority refugee groups to put under pressure on its neighbour Myanmar. K. Chongkittavorn, ‘Thai-Burma Relations’ in Challenges to Democratizaton in Burma: Perspectives on Multilateral and Bilateral Responses (International idea, Stockholm, Sweden, 2001), pp. 117, 124.
Refugee and idp Camp Populations in December 2018; Refugees by Ethnicity: Karen 80.1%; Karenni 10%; Burman 3.2%; Mon 0.6% and Other 6.1%. The Border Consortium, 2018 Annual Report, pp. 6. <www.theborderconsortium.org/media/TBC- Annual-Report-2018-ENG.pdf>, visited on 31 March 2022.
unhcr, Global Trends: Forced Displacement in 2018, <https://www.unhcr.org/5d08d7ee7.pdf>, visited on 31 March 2022.
Human Rights Watch, Ad Hoc and Inadequate Thailand’s Treatment of Refugees and Asylum Seekers (Web Page, 2012), pp. 18 <www.hrw.org/sites/default/files/reports/thailand0912.pdf>, visited on 31 March 2022.
S. Davies, ‘Saving Refugees or Saving Borders? Southeast Asian States and the Indochinese Refugee Crisis’ 18(1) Global Change, Peace and Security (2006), pp. 3–24, pp. 7.
Hong Kong, Indonesia, Japan, Korea of Republic, Macau, Malaysia, the Philippines, Singapore and Thailand. unhcr, The State of the World’s Refugees 2000, supra note 18, pp. 98.
Ibid. pp. 79.
Ibid. pp. 82.
Ibid.
Ibid. pp. 83–86.
Ibid. pp. 84.
Ibid. 79–105; F. Frost, ‘Vietnam, asean And The Indochina Refugee Crisis’, in L. Suryadinata (ed.), Southeast Asian Affairs 1980 (iseas Publishing 1980), pp. 347–367; S. Davies, ‘Realistic Yet Humanitarian? The Comprehensive Plan of Action and Refugee Policy in Southeast Asia,’ 8:2 International Relations of the Asia-Pacific (2008), pp. 191–217.
M. Lacey, ‘A Case Study in International Refugee Policy: Lowland Lao Refugees’ in Scott Morgan and Elizabeth Colson (eds), People in Upheaval.(Staten Island, NY: Center for Migration Studies, 1987), pp. 17, 23.
Ibid. 23.
Ibid. 23–24.
Royal Thai Embassy, Letter to the Editor of Washing Post: On Thailand’s Role on Cambodian Peace Process (Press Release, Washington, 28 December 1992).
Tripartite Memorandum of Understanding Among the Royal Thai Government, the Supreme National Council of Cambodia, and the Office of the United Nations High Commissioner for Refugees Relating to the Repatriation of Cambodian Refugees and Displaced Persons from Thailand, 21 November 1991. <www.refworld.org/docid/3edf21f14.html>, visited on 31 March 2022.
S. Oh, ‘Rohingya Boat Arrivals in Thailand: From the Frying Pan into the Fire?’, in ISEAS Perspective: Selections 2012–2013 (Singapore: Institute of Southeast Asian Studies, 2014), pp. 150.
A. Helton, ‘Asylum and Refugee Protection in Thailand’ 1(1) International Journal of Refugee Law (1989) pp. 20–47, 27–29.
Equal Rights Trust, Equal Only in Name: The Human Rights of Stateless Rohingya in Thailand (London, 2014) 17 <www.equalrightstrust.org/ertdocumentbank/Equal% 20Only%20in%20Name%20-%20Thailand%20-%20Full%20Report.pdf>, visited on 31 March 2022.
Asia and Pacific Refugee Rights Network (apprn), Country Factsheet: Thailand (4 September 2018) <https://drive.google.com/file/d/1_smeFyG71Wx6Ln-3yFEQPj61MV9rpQDf/view>, visited on 31 March 2022.
Amnesty International, Between a Rock and a Hard Place: Thailand’s Refugee Policies and Violations of The Principle of Non-Refoulement (2017) <www.amnesty.org/en/documents/asa39/7031/2017/en/>, visited on 31 March 2022.
A. Seltzer, ‘Human trafficking: The Case of Burmese refugees in Thailand’ 37(4) International Journal of Comparative and Applied Criminal Justice (2013), pp. 279–293, 283.
Human Rights Watch, Thailand: Don’t Send Back Bahraini Dissident (online, 30 November 2018) <www.hrw.org/news/2018/11/30/thailand-dont-send-back- bahraini-dissident>, visited on 31 March 2022; Amnesty International, Between a Rock and a Hard Place, supra note 61; ‘Land of Smiles? Thailand’s History of Deporting Refugees and Asylum Seekers’, Prachatai English (online newspaper, Thailand, 14 February 2019) <https://prachatai.com/english/node/7929>, visited on 31 March 2022; B. Doherty, ‘Thailand begins deportation of more than 4,000 Hmong asylum seekers’, The Guardian (online, 29 December 2009) <www.theguardian.com/world/2009/dec/28/thailand- deportation-hmong-laos>, visited on 31 March 2022; O. Holmes, ‘Thailand forcibly sends nearly 100 Uighur Muslims back to China’, The Guardian (online, 9 July 2015) <www.theguardian.com/world/2015/jul/09/thailand-forcibly -sends-nearly-100-uighur-muslims-back-to-china>, visited on 31 March 2022.
Human Rights Watch, Two Years with No Moon: Immigration Detention of Children in Thailand (Web Page, 2014) 16 <https://www.hrw.org/report/2014/09/01/two-years-no-moon/immigration-detention-children-thailand>, visited on 31 March 2022; Equal Rights Trust, Equal Only in Name: The Human Rights of Stateless Rohingya in Thailand, supra note 59, pp. 16.
Human Rights Watch, Ad Hoc and Inadequate Thailand’s Treatment of Refugees, supra note 43, pp. 1.
Human Rights in asean, Thailand: Provide Legal Status, Protections for Refugees (Web Page, 13 July 2017) <https://humanrightsinasean.info/news/thailand- provide-legal-status-protections-for-refugees/>, visited on 31 March 2022.
unhcr, ‘unhcr Welcomes Thai Cabinet approval of framework for refugee screening mechanism’ (Press Release, 16 January 2017, Bangkok) <https://reliefweb.int/report/thailand/unhcr-welcomes- thai-cabinet-approval-framework-refugee-screening-mechanism>, visited on 31 March 2022.
Joint Statement, ‘Thailand: Implement Commitments to Protect Refugee Rights End detention, forcible returns of refugees’ (6 July 2017, Bangkok). The Joint Statement was signed by Amnesty International, Asia Pacific Refugee Rights Network (apprn), Asylum Access Thailand Coalition for the Rights of Refugees and Stateless Persons, Coalition on Refugee Protection, fidh – International Federation for Human Rights, Fortify Rights, Human Rights Watch, Migrant Worker Rights Network, Migrant Working Group, People Empowerment Foundation, Save the Children and Ummatee. In the Joint Statement tt has been noted: ‘Currently, Thailand lacks a legal framework to assess asylum claims and fails to provide formal legal status to refugees in the country, heightening the risk of other human rights violations, including arbitrary and indefinite detention, refoulement, and human trafficking’, pp. 3. It also noted that: ‘The lack of progress in implementing these commitments and addressing serious and ongoing human rights violations affecting the situation of refugees in Thailand,’ pp. 2, <www.hrw.org/sites/default/files/supporting_resources/jointstatement_thailand_ refugeerights_072017.pdf>, visited on 31 March 2022.
Fortify Rights, Thailand: End Raids and Arbitrary Detention of Refugees: More than 200 Refugees Arrested in Two Months, Deputy Prime Minister orders Deportation of Migrants (News Release, Bangkok, 12 October, 2018) <www.fortifyrights.org/publication-20181012.html>, visited on 31 March 2022.
‘Over 1,000 arrested in Phuket “Operation X-Ray Outlaw Foreigner” clampdown’, The Phuket News (online, 16 October 2018) <https://www.thephuketnews.com/over-1- 000-arrested-in-phuket-operation-x-ray- outlaw-foreigner-clampdown-68996.php#RKbW0Rhd1IWeUmGY.99>, visited on 31 March 2022; W. Ngamkham, ‘Hundreds caught in latest ‘Outlaw Foreigners’ raids’, Bangkok Post (online, 11 January 2019) <www.bangkokpost.com/thailand/general/1609470/hundreds -caught-in-latest-outlaw-foreigners-raids>, visited on 31 March 2022; Amnesty International, Open Letter: Thailand Must Uphold International Obligations in Immigration Enforcement Operations (Index: asa 39/9354/2018, 5 November 2018) <www.amnesty.org/download/Documents/ASA3993542018 ENGLISH.pdf>, visited on 31 March 2022.
Human Rights Watch, Out of Sight, Out of Mind: Thai Policy Towards Burmese Refugees and Migrants (Vol. 16, No. 2 (C), Web Page, 24 February 2004), pp. 1 <www.hrw.org/sites/default/files/reports/thailand0204.pdf>, visited on 31 March 2022.
Amnesty International, Open Letter: Thailand Must Uphold International Obligations, supra note 70.
S. Phasuk, ‘Thailand Offers Persecuted Rohingya Little Hope: Prime Minister’s Racist Comments Reflect Inhumane Asylum Seeker Policy’ (Web Page, 31 July 2019) <www.hrw.org/news/2019/07/31/thailand-offers-persecuted-rohingya-little-hope>, visited on 31 March 2022.
S. Ganjanakhundee, ‘Thailand’s refusal to recognize Rohingya as refugees leaves them in illegal limbo’, The Nation Thailand (online, 4 March 2018) <www.nationthailand.com/asean-plus/30340157>, visited on 31 March 2022.
The seven government agencies are: The Royal Thai Police, the Ministry of Social Development and Human Security, the Ministry of Foreign Affairs, Ministry of Interior, Ministry of Public Health, Ministry of Education, and Ministry of Labour. Ministry of Foreign Affairs of the Kingdom of Thailand. ‘Signing Ceremony of the Memorandum of Understanding on the Determination of Measures and Approaches Alternative to Detention of Children in Immigration Detention Centers’ (Press Release, 24 January 2019). <www.mfa.go.th/en/content/5d5bd20815e39c30600278fd?page =5d5bd3da15e39c306002aaf9&menu=5d5bd3da15e39c306002aafa>, visited on 31 March 2022.
Ibid. See also, unhcr, New York Declaration for Refugees and Migrants, Summary Overview Document: Leaders’ Summit on Refugees (10 November 2016) <https://www.unhcr.org/58526bb24>, visited on 31 March 2022.
J. Chia, ‘Detention Centres Stuck in Past Century’, Bangkok Post (online, 18 February 2018) <www.bangkokpost.com/thailand/special-reports/1414047/thailands- detention-centres-stuck-in-past-century>, visited on 31 March 2022.
unhcr, Identity Documents for Refugees (ec/scp/33, 20 July 1984) para 13 <https://www.unhcr.org/en-au/excom/scip/3ae68cce4/identity-documents- refugees.html>, visited on 31 March 2022.
unhcr, Analysis of Gaps in Refugee Protection Capacity Thailand (November 2006), pp. 33 <https://www.unhcr.org/457ed0412.pdf>, visited on 31 March 2022.
Fortify Rights, ‘Thailand: Ensure New Policies Protect Refugees’ (News Release, 11 November 2019) <https://www.fortifyrights.org/tha-inv-2019-11-11/>. visited on 31 March 2022.
M. J. Yamada Park, ‘Thailand’s National Screening Mechanism paves the way for better refugee protection’, <https://reliefweb.int/report/thailand/thailand-s-national- screening-mechanism-paves-way-better-refugee-protection>, visited on 31 March 2022.
Asia Pacific Refugee Rights Network, ‘Press Release: Thailand quietly delays implementation of refugee screening mechanism,’ <https://reliefweb.int/sites/reliefweb.int/files/resources/200624-Press-Release-NSM- Implementation-Delay.pdf>, visited on 31 March 2022.
Equal Rights Trust, ERT Urges Thai PM to Rescue 126 Rohingya Pushed Out to Sea by Thai Military (London, 23 January 2009) <www.equalrightstrust.org/news/ert- urges-thai-pm-rescue-126-rohingya-pushed-out-sea-thai-military>, visited on 31 March 2022.
A. d. Chickera, ‘Thailand Must Stop Dumping Stateless People at Sea’, The Telegraph (online, 6 February 2009) <www.telegraph.co.uk/comment/4537374/Thailand-must-stop-dumping-stateless- people-at-sea.html>, visited on 31 March 2022.
T. Hume, I. Watson and K. Olarn, ‘Migrant boat re-enters Malaysian waters after refusing offer to land: Thai officials’ CNN (online, 17 May, 2015) <https://edition.cnn.com/2015/05/15/asia/thailand-malaysia-rohingya- refugees/index.html>, visited on 31 March 2022.
C. Woolf, ‘Under Heavy Pressure, Indonesia, Thailand and Malaysia Grant Temporary Shelter to Thousands of Refugees Trapped at Sea’, Public Radio International (PRI) (online, 20 May 2015). <www.pri.org/stories/2015-05-20/under-heavy- pressure-indonesia-thailand-and- malaysia-grant-temporary-shelter>, visited on 31 March 2022.
Ministry of Foreign Affairs of the Kingdom of Thailand, Press Releases: Summary Special Meeting on Irregular Migration in the Indian Ocean 29 May 2015, Bangkok, Thailand, <www.mfa.go.th/en/content/5d5bcf0015e39c3060017e7b?cate= 5d5bcb4e15e39c3060006834>, visited on 31 March 2022.
L. Murdoch, ‘Thai Plan to Push Back Rohingya Refugees Sparks Fears of New Wave of Boat People’, The Sydney Morning Herald (online, 26 September 2017) <www.smh.com.au/world/thai-plan-to-push-back- rohingya-refugees-sparks-fears-of- new-wave-of-boat-people-20170926-gyou16.html>, visited on 31 March 2022.
Z. Daniel, ‘Thai Military Accused of Shooting Fleeing Refugees’, abc News (online, 8 March 2013) <www.abc.net.au/news/2013-03-08/accusations-thai-military- shot-fleeing-refugees/4561958>, visited on 31 March 2022.
S. Phasuk, Thailand Needs to Stop Inhumane Navy ‘Push-Backs’, Human Rights Watch (Web Page, 22 September 2017) <www.hrw.org/news/2017/09/22/thailand- needs-stop-inhumane-navy-push-backs>, visited on 31 March 2022.
Proclamation establishing the Breadth of the Territorial Waters, 6 October 1966 (Thailand).
Royal Proclamation establishing the Contiguous Zone of the Kingdom of Thailand, 14 August 1995 (Thailand).
Royal Proclamation establishing the Exclusive Economic Zone of the Kingdom of Thailand, 23 February 1981 (Thailand).
Thailand signed unclos iii on 10 December 1982. On 26 April 2011, the 6th Joint Session of the Parliament approved unclos iii in Thailand. The Ministry of Foreign Affairs deposited the instruments of ratification and accession of the Convention on 15 May 2011. The Convention entered into force for Thailand on 14 June 2011 in accordance with its Article 308 (2). See, Royal Thai Embassy (Singapore), ‘Thailand Becomes State Party to The United Nations Convention on the Law of the Sea (unclos) 1982’ (Press and Media).
Articles 19(2)(g), 21(1)(h), 25 and 33 of unclos iii.
W. A. Herrmann, ‘The Royal Thai Navy at the beginning of the second decade of the twenty-first century’ in G. Till and J. Chan (eds), Naval Modernisation in South-East Asia Nature, Causes and Consequences (Routledge, 2013) 204, 218.
Global Security, ‘Royal Thai Coast Guard Squadron’ <www.globalsecurity.org/military/world/thailand/coastguard.htm>, visited on 31 March 2022.
P. Paleri, ‘Coast Guards of the World and Emerging Maritime Threats’ (Ocean Policy Research Foundation, Japan, 2009) pp. 97 <www.spf.org/_opri_media/publication/pdf/200903_ISSN1880-0017.pdf>, visited on 31 March 2022.
‘Thailand: Maritime Enforcement Coordinating Center’, asean Regional Forum (online) <http://aseanregionalforum.asean.org/wp- content/uploads/2019/01/ANNEX-7-10th-ISM-on-MS.pdf>, visited on 31 March 2022. See also, W. Nanuam, ‘Maritime body restructured to tackle iuu’. Bangkok Post (online, 14 September 2019) <www.bangkokpost.com/thailand/general/1749594/maritime- body-restructured-to-tackle-iuu>. visited on 31 March 2022.
Ibid., ‘Thailand: Maritime Enforcement Coordinating Center’.
Captain P. Rakkeo, ‘Coordination: The Kingdom of Thailand’s Example’, The Australian Naval Institute (online, 17 April 2017) <https://navalinstitute.com.au/coordination-the-kingdom-of-thailands-example/>, visited on 31 March 2022; S. Edwards, ‘From Coordination to Command: Making Thailand’s Maritime Security Governance More Efficient?’ Safe Seas (Safe Seas is a network of academic institutions studying maritime security) (online, 22 October 2019) <www.safeseas.net/from-coordination-to-command-making-thailands-maritime- security-governance-more-efficient/>, visited on 31 March 2022; P. Parameswaran, ‘Managing the Rise of Southeast Asia’s Coast Guards’ (Wilson Centre, Washington, online, 14 February 2019) <https://www.wilsoncenter.org/publication/managing-the- rise-southeast-asias-coast-guards>, visited on 31 March 2022.
Chapter V, Regulation 33(1) of the 1974 International Convention for the Safety of Life at Sea (solas 1974); Para 2.1.1, Chapter 2, Annex of the 1979 International Convention on Maritime Search and Rescue Convention (sar 1979) and Article 10 of the 1989 International Convention on Salvage.
Thailand is a party to the following international human rights instruments: Convention Against Torture (cat) 1984 (signed on 2/10/2007); Convention on the Elimination of All Forms of Discrimination against Women (cedaw) 1979 (signed on 9/08/1985); Convention on the Rights of the Child (crc) 1989 (signed on 27/03/1992); International Covenant on Civil and Political Rights (iccpr) 1966 (signed on 29/10/1996); International Convention on the Elimination of all Forms of Racial Discrimination (icerd) 1965 (signed on 28/01/2003); International Covenant on Economic, Social and Cultural Rights (icescr) 1966 (signed on 5/9/1999); Convention on the Rights of Persons with Disabilities (crpd) 2006 (signed on 29/07/2008).
solas 1974, Thailand date of signature on 18 December 1984, date of entry on 18 March 1985.
imo <http://www.imo.org/en/About/Membership/Pages/MemberStates.aspx>, visited on 31 March 2022.
imo, Guidelines on the Treatment of Persons Rescued at Sea, Resolution msc. 167(78), msc 78/26/Add.2, Annex 34.
V. Muntarbhorn, The Core Human Rights Treaties and Thailand (Brill, 2016), pp. 6.
V. Muntarbhorn, ‘Thailand’ in S. Chesterman, H. Owada and B. Saul (eds), The Oxford Handbook of International Law in Asia and the Pacific (Oxford University Press, 2019), pp. 374–376.
Civil Procedure Code of Thailand, B.E. 2477 (A.D. 1934).
K. Kittichaisaree, ‘Effectuation of International Law in the Municipal Legal Orders of Thailand’ in Ko Swan Sik, M. C. W. Pinto and J. J. G. Syatauw, Asian Yearbook of International Law: 1994 (Vol. 4) (Kluwer Law International, 1995), pp. 172.
Final Text of the aalco’s 1966 Bangkok Principles on Status and Treatment of Refugees, as adopted on 24 June 2001 at the aalco’s 40th Session, New Delhi.
Association of Southeast Asian Nations (asean), asean Human Rights Declaration, 18 November 2012.
A. G. Pizor, ‘Sale v Haitian Centers Council: The Return of Haitian Refugees’ 17(4) Fordham International Law Journal (1993), pp. 1062–1114, pp. 1075–1076.
L. Henkin, ‘Human Rights and State “Sovereignty”’ 25(1) Georgia Journal of International and Comparative Law (1996), pp. 31–45, pp. 35.
Ibid., 40.
See, J. Alam, ‘The Status and Rights of the Rohingya as Refugees under International Refugee Law: Challenges for a Durable Solution’ 19(2) Journal of Immigrant and Refugee Studies (2021), pp. 128–141.
D. Hassan and H. Al Imran, ‘Boat Refugees, International Law and Australia’s Commitment: An Analysis’, 51(3) Journal of Maritime Law & Commerce (2020), pp. 187–241.
