Friday, January 16, 2009

Refoulement Most Foul

The BBC reports that the Thai government has recently implemented a "brutal and inhuman response" to undocumented migrants from Bangladesh and Burma: tying their hands, forcing them into boats without engines and little or no food and water, and towing them out to sea. As one survivor noted, "The Thai soldiers clearly wanted us to die on the boats." Many died from dehydration and others jumped overboard. Sources in the Thai police and army confirm that at least some of those being pushed out to sea are asylum seekers.
Thailand's behavior violates fundamental provisions of international human rights treaties to which it is a party, most notably the right not to be arbitrarily deprived of one's life. So why did the Thai government feel empowered to so callously disregard the rights of these migrants? The reasons are obviously complex, but one answer may be that international law governing the rights of migrants lacks specificity, particularly in this region. None of the states involved -- Bangladesh, Burma, Thailand, and even India, which is currently caring for the refugees -- is a signatory to the United Nations Convention Relating to the Status of Refugees. While the principle of non-refoulement may have attained the status of customary international law, the regional failure to join the Convention may contribute to a regional view that protection of refugees is a favor rather than a duty. And if the rights of refugees are seen as optional, then economic migrants have little hope of robust rights protection.
So what's the solution? Apart from encouraging nations in the region to ratify the Refugee Convention, a regional treaty that affirms that rights extant in international human rights treaties apply to migrants might help to change attitudes. Countries that produce large numbers of regional migrants could take the lead in promoting protection for their citizens abroad. The non-binding "Bangkok Principles" for the protection of refugees were a preliminary step, back in 1966 -- it's high time now to take the next.


Fiona de Londras said...

Great post Jaya! It brings one question immediately to mind for me: is the Thai government violating the prohibition on torture (both UNCAT and jus cogens) in treating individuals this way? My own view is that it is, so although there may be a doctrinal vaccum in the area of refugee/asylum law here (in treaty based terms at least) I think the law of torture would step in there to clearly prohibit such barbaric action.

Your point about the lack of a robust regime relating to aslyum/migration in the region of course still stands and, I think (perhaps in a stereotypically European way) that increased and formalised regional economic integration is likely to imrrove standards relating to such individuals although not, it must be said, in a particularly speedy way.

Jaya Ramji-Nogales said...

Thanks, Fiona! The prohibition on torture is a good suggestion, and I agree that it might protect not only asylum seekers fleeing torture but also economic migrants from such barbaric expulsion. Unfortunately, Thailand isn't a signatory to CAT (India has signed but not ratified, so this may be another regional issue) but the jus cogens prohibition still stands. In any case, this prohibition should certainly be reiterated in any regional agreement relating to migrants.