Disregarding Non-Refoulement: Thailand’s International Law Violations Against Refugees and Asylum Seekers

Rebecca Bitar April, 2024

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Introduction

As of September 30, 2023, Thailand has about 91,000 refugees staying in nine camps along its border with Myanmar.[1] Most of the refugees are Myanmar natives, with new waves of displacement having been caused by Myanmar’s resurgence of conflict in recent years.[2] In February 2021, the Myanmar military launched a coup and declared their 2020 election results invalid.[3] The coup impeded democratic progress in the country, with the military takeover having occurred hours before the newly elected parliament was scheduled to convene.[4]

Recently, Thailand’s government has pushed thousands of Burmese refugees back over the border, jeopardizing these individuals’ lives and safety.[5] Last fall, the Thai military had ordered refugees to return to Myanmar within a two-week time frame, but a month later thousands crossed back into Thailand again.[6] Thai officials reason that in addition to the lack of recent clashes on the border, which allows refugees to return home, the refugees’ stay in Thailand was meant to be temporary yet they have already been in the country for over three months.[7]

This blog post explores the various legal schemes that are implicated by Thailand’s handling of the refugee issue and argues that these actions amount to violations of international law.

Which International Laws Are Specifically Implicated By This Issue?

Although Thailand is not a party to the 1951 Refugee Convention or its 1967 protocol,[8] it is a party to the U.N. Convention Against Torture.[9] This convention is directly implicated by the act of sending refugees back over the Thailand-Myanmar border, as it states 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.”[10] To determine such grounds, the Convention states that authorities need to take into account such relevant considerations as the presence of a consistent pattern of “gross, flagrant or mass violations of human rights” in the State concerned, which in this case is Myanmar.[11]

Thailand has asserted that refugees should be sent back because there have not been any recent armed clashes on the border preventing them from returning to Myanmar,[12] thereby maintaining the claim that there are no grounds for believing that the refugees are in danger of being tortured if they return home. However, about a month after Thai authorities ordered refugees back to Myanmar in October 2023, the Myanmar military carried out airstrikes on the Daw Noe Ku border settlement for internally displaced people, with at least three bombs having struck inside the camp.[13] Before this incident, 60 airstrikes were carried out in the first nine months of 2023 in Kayah, the state where the camp is located.[14] Many Myanmar natives who have fled multiple airstrikes say that going back is a death sentence.[15]

It is submitted here that “mass violations of human rights,” as stated in the Convention Against Torture, is synonymous with the term “crime against humanity.” This is because the commission of a single act constitutes a human rights violation, but the systematic and widespread pattern of human rights violations is said to constitute a crime against humanity.[16] The Myanmar military has faced allegations of several abuses that amount to crimes against humanity in recent years, including mass killings, arbitrary arrests, torture, and sexual violence.[17] Furthermore, the Rome Statute of the International Criminal Court has defined “crime against humanity” as acts committed as “a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”[18] Such acts relevant to the issue at hand include but are not limited to murder, extermination, deportation or forcible transfer of population, imprisonment, and torture.[19]

Concluding, therefore, that there exists a consistent pattern of “gross, flagrant, or mass violations of human rights” in Myanmar, grounds have been established for believing that refugees would be in danger of being subjected to torture if they were to return to Myanmar. Thus, Thailand, as a party to the Convention Against Torture, is prohibited from expelling refugees back to Myanmar. In committing refoulement, Thailand is in violation of this international convention.

The Principle of Non-Refoulement and its Position in Customary International Law

Non-refoulement is a fundamental principle of international law that guarantees that “no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm.”[20] Non-refoulement was codified in the 1951 Refugee Convention.[21] Because the nature of non-refoulement is characterized as absolute and without exception, its scope under relevant human rights treaties is significantly broad.[22] Thus, although Thailand is not a party to the 1951 Refugee Convention[23] or its 1967 Protocol,[24] non-refoulement is considered customary international law[25] that Thailand must still uphold.[26] In carrying out refoulement efforts that require refugees to return to Myanmar during an ongoing insurgent conflict, Thailand is currently in violation of customary international law until the country chooses to enact a treaty or law deviating from it under the lex specialis doctrine.[27]

In addition to non-refoulement’s role in customary international law, there is some debate as to whether non-refoulement is a peremptory norm, also known as jus cogens.[28] Peremptory norms differ from ordinary customary international law in that countries can diverge from customary international law through the enactment of treaties or statutes, but peremptory norms are non-derogable.[29] In essence, all peremptory norms are customary international law, but not all customary international laws are peremptory norms.

To establish that non-refoulement has attained the status of a peremptory norm, States’ practice of the principle must be based on the belief that they are bound by legal obligation to do so and that the obligation is binding as a matter of jus cogens.[30] The fact that non-refoulement is classified as customary international law signifies that State practice exists,[31] and according to the Conclusions adopted by the Executive Committee of the U.N. High Commissioner for Refugees, “the principle of non-refoulement is not subject to derogation.”[32] By fulfilling both requirements to obtaining peremptory norm status, it is therefore posited that the principle of non-refoulement already acts as a peremptory norm and should be classified as such in order to increase the protections of refugees at risk of being exiled to a state where they are likely to face further persecution.

Conclusion

In consideration of the arguments made above, Thailand is ultimately in violation of both the Convention Against Torture and the customary international law principle of non-refoulement. In terms of resolving these violations, the United Nations Security Council (U.N.S.C.) is responsible for maintaining international peace and security, and was granted this responsibility by the member States of the United Nations.[33] Consequently, the U.N.S.C. needs to consider Thailand’s treatment of Burmese refugees as a breach of peace and an act of aggression towards these individuals. The U.N.S.C. is within its power to take such action as deploying peacekeeping forces[34] to stop Thailand from forcing refugees across the Myanmar border, and should do so in addressing this issue. Finally, in order to strengthen the U.N.S.C.’s authority to intervene, the non-refoulement principle should be recognized as a peremptory norm and it should be held that Thailand is therefore violating a non-derogable human right.

  1. Thailand Multi-Country Office, U.N. High Comm’r for Refugees (2024), https://reporting.unhcr.org/operational/operations/thailand-multi-country-office#:~:text=In%20urban%20areas%2C%20as%20of,basic%20rights%20and%20essential%20services. ↑
  2. See id. ↑
  3. Angela Clare, The Myanmar Coup: A Quick Guide, Parliament of Australia (July 2, 2021), https://www.aph.gov.au/About_Parliament/Parliamentary_departments/Parliamentary_Library/pubs/rp/rp2122/Quick_Guides/MyanmarCoup. ↑
  4. Id. ↑
  5. Thailand: Recent Refugees Pushed Back to Myanmar, Hum. Rts. Watch (Nov. 29, 2023), https://www.hrw.org/news/2023/11/29/thailand-recent-refugees-pushed-back-myanmar. ↑
  6. See id. ↑
  7. See id. ↑
  8. Thailand: Events of 2023, Hum. Rts. Watch (2023), https://www.hrw.org/world-report/2024/country-chapters/thailand#2c85d2. ↑
  9. U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, 1465 U.N.T.S. 85 (entered into force June 26, 1987) [hereinafter Convention Against Torture] (for a copy of the treaty and listed signatories, see https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-9&chapter=4&clang=_en). ↑
  10. Id. art. 3 para. 1. ↑
  11. Id. art. 3 para. 2. ↑
  12. See supra note 5. ↑
  13. See supra note 5 (Daw Noe Ku is also seen spelled as Doh Noh Ku). ↑
  14. Rebecca Tan, How Myanmar’s Unrelenting Airstrikes Chase Families from Camp to Camp, Wash. Post (Nov. 7, 2023, 2:00 AM), https://www.washingtonpost.com/world/2023/11/07/myanmar-military-thailand-refugees-airstrikes/. ↑
  15. Id. ↑
  16. Juan Pablo Pérez-León Acevedo, The Close Relationship Between Serious Human Rights Violations and Crimes Against Humanity: International Criminalization of Serious Abuses, 17 Anuario Mexicano de Derecho Internacional, 145, 154 (2017). ↑
  17. Myanmar: Events of 2022, Hum. Rts. Watch (2022), https://www.hrw.org/world-report/2023/country-chapters/myanmar#:~:text=Since%20staging%20a%20coup%20on,amount%20to%20crimes%20against%20humanity. ↑
  18. Rome Statute of the International Criminal Court, art. VII, para. 1, July 17, 1998, 2187 U.N.T.S. 3. ↑
  19. See id. ↑
  20. The Principle of Non-Refoulement Under International Human Rights Law, U.N. Office of the High Comm’r for Hum. Rts. (2018), https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf. ↑
  21. Convention Relating to the Status of Refugees, art. 33, July 28, 1951, 189 U.N.T.S. 137. ↑
  22. See supra note 20. ↑
  23. See generally supra note 21 (for a copy of the treaty and listed signatories, see https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-2&chapter=5&Temp=mtdsg2&clang=_en). ↑
  24. See generally Protocol Relating to the Status of Refugees, Oct. 4, 1967, 606 U.N.T.S. 267 (for a copy of the treaty and listed signatories, see https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=V-5&chapter=5). ↑
  25. Statute of the International Court of Justice, art. 38 (Oct. 24, 1945) (defining international custom). ↑
  26. See supra note 20. ↑
  27. See Nancie Prud’homme, Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship?, 40 Isr. L. Rev. 356, 366 (2007), for a discussion on how the lex specialis rule conveys that specific law prevails over general law. ↑
  28. Jean Allain, The Jus Cogens Nature of Non-Refoulement, 13 Int’l J. Refugee L. 533, 534 (2001) (discussing the importance of granting jus cogens status to the principle of non-refoulement). ↑
  29. Rep. of the Int’l L. Comm’n, at 142, U.N. Doc. A/74/10 (2019) (“A peremptory norm of general international law (jus cogens) is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted…”). ↑
  30. Allain, supra note 28, at 538. ↑
  31. Allain, supra note 28, at 538. ↑
  32. Conclusion Adopted by the Executive Committee on the International Protection of Refugees, U.N. High Comm’r for Refugees (1996), https://www.unhcr.org/sites/default/files/legacy-pdf/578371524.pdf. ↑
  33. Allain, supra note 28, at 542. ↑
  34. Louise Smith, When a Country Breaches International Human Rights Law, About Human Rights (July 1, 2023), https://www.abouthumanrights.co.uk/when-country-breaches-international-human-rights-law.html#:~:text=The%20International%20Criminal%20Court%20was,its%20inauguration%20in%20July%202002. ↑