Blog post by Adam Severson, a US-based human rights lawyer and consultant. From 2012 to 2014, Adam was Legal Officer at Jesuit Refugee Service-Thailand; in 2018, he was awarded a Fulbright grant to study asylum systems in the ASEAN region.
During the September 2016 Leaders’ Summit on Refugees, Thailand’s Prime Minister, Prayut Chan-o-cha, made a surprise pledge: Thailand would ‘develop an effective screening mechanism to distinguish those with genuine protection needs from economic migrants’. The previous February, in the context of the Universal Periodic Review (UPR), the Royal Thai Government (RTG) had claimed it was studying screening mechanisms in other countries, a claim it repeated to the United Nations Human Rights Council two weeks before the Leaders’ Summit. Few observers had understood whether these claims signalled serious intent or whether they were tailored for the UPR. After all, screening is an obligation implied by the 1951 Convention on the Status of Refugees and its 1967 Protocol, international instruments to which Thailand has resolutely refused membership.
In November 2016, RTG affirmed the Prime Minister’s pledge—this time to the United Nations Human Rights Committee—and in January 2017, Thailand’s Cabinet approved in principle the creation of a screening mechanism. The pledge and its approval prompted a mixture of praise, encouragement and concern. The United Nations High Commissioner for Refugees (UNHCR) lauded RTG’s assumption of responsibility and offered ‘technical and other assistance’. For more than two decades, in the absence of a government mechanism, UNHCR has screened ‘urban’ asylum seekers in Bangkok within a surrogate process known as ‘refugee status determination’ (RSD). RSD has been costly and controversial, and UNHCR has long lobbied RTG for a permanent, government-administered process. Foreign donors likewise applauded, and civil society organizations—characteristically more cautious—called the prospective mechanism ‘potentially positive’.
Yet optimism was tempered by unease. Notwithstanding its statements in support of the prospective screening mechanism, UNHCR too sounded uncertain about the contours of RTG’s commitment. UNHCR’s then Representative to Thailand exhorted: ‘We hope [a regulatory framework for refugee protection] will clearly establish the criteria and methodology for deciding who is and isn’t a refugee, and outline their rights and obligations in Thailand’. Civil society organizations warned that a mechanism that ‘employs discriminatory or overly restrictive criteria could entrench rather than resolve outstanding concerns regarding asylum protections’. Sceptics cited RTG’s restrictions on the RSD process—UNHCR is barred from screening North Koreans, Burmese, Rohingya and ethnic Hmong from Laos—and observed that RTG had screened asylum seekers before in provisional processes designed to deter rather than to protect. Some also noted that the announcement of the screening mechanism coincided with rising numbers of asylum applications in Thailand and renewed emphasis among top officials on securitization. From 2012 to 2015, UNHCR received 9,515 first-time applications from asylum seekers in Bangkok, an increase of more than 250% over the previous three-year period. RTG publically complained that the growing number of ‘undocumented migrants…hoping to be resettled to third countries’ challenged ‘national security and law and order’ and ‘confirm[ed RTG’s] view that it was necessary to distinguish economic migrants from those with a genuine need for international protection’.
Fast forward four years. The screening mechanism and related regulatory framework have taken the form of a prime ministerial regulation (Regulation). Finalized on 24 December 2019, the Regulation was scheduled to take effect by 22 June 2020. Presumably in part due to COVID-19, that deadline was missed. RTG has not released a revised timeline for implementation.
Early scepticism about RTG’s intentions now seems far-sighted. Rather than a new commitment to international norms, the Regulation embodies long-standing features of RTG’s approach to refugee protection, above all, continued resistance to international refugee law and reliance on resettlement to third countries. The screening mechanism, which RTG has appropriately called ‘homegrown’, deviates from accepted substantive and procedural standards—for example by barring appeals of negative asylum decisions—and leaves practical questions about its workings unanswered.
The remainder of this short piece proceeds in two parts. Part one highlights elements of the Regulation that reflect Thai refugee policy in recent decades and have caused alarm among refugee advocates. Part two argues that a common UNHCR approach to RSD transitions, which emphasizes technical guidance, capacity building and financial support, is alone unlikely to persuade RTG to rethink its approach. To win RTG’s buy-in for a national screening mechanism that meets international standards, UNHCR should instead assume a facilitative role, convening a broad group of multi-sectorial stakeholders to negotiate a sustainable and accountable mechanism for which responsibility is shared.
A ‘Homegrown’ Screening Mechanism
Host to more than a million refugees over the last half-century, RTG has criticized the Refugee Convention and 1967 Protocol for not requiring international cooperation or addressing the root causes of refugee displacement. In the absence of reliable responsibility sharing, RTG has rejected international legal obligations for which it fears it would be atomistically responsible. Thai law instead treats asylum seekers and refugees as illegal entrants but allows RTG marge de manoeuvre. Anchored in vague ‘humanitarian’ principles, Thai refugee policy has been protean—at turns hospitable and hostile—guided by a mixture of humanitarian beneficence, securitization, political expedience and qualified respect for international norms.
To distinguish its approach from international refugee law, RTG has avoided the label ‘refugee’, instead using ‘displaced person’, ‘evacuee’ or ‘those fleeing fighting’. The Regulation continues this practice, introducing a new and under-defined term: ‘person under protection’, a non-Thai national at reasonable risk of experiencing harm violating ‘human rights and human dignity’. The new term eschews internationally recognized definitions of ‘refugee’ and seemingly permits the flexible decision-making with which RTG is comfortable. No one, including relevant immigration officials, appears to have a clear sense of the term’s meaning, which could enable shifting interpretations as suit RTG’s preferences.
The Regulation’s non-refoulement provision appears equally elastic. Considered a bedrock principle of international refugee law, non-refoulement requires that no person—with limited exceptions for security—be returned to any country where they are at reasonable risk of persecution. RTG has proclaimed adherence to the principle but applied it selectively, forcibly repatriating asylum seekers and even UNHCR-recognised refugees. In 2015, for example, RTG deported two Chinese dissidents against UNHCR’s objections; and in 2018, RTG returned labour activist Sam Sokha to Cambodia where she received a two-year sentence for throwing a shoe at a ruling party billboard. That year RTG also detained Bahraini footballer, Hakeem Al-Araibi, while it considered extradition to Bahrain. Australia had granted Al-Araibi asylum in 2017, a fact given little weight in Thailand’s domestic legal proceedings. RTG too would have refouled Saudi asylum seeker Rahaf Al-Qunun in 2018, if not for her self-advocacy on Twitter and the interventions of human rights advocates, foreign diplomats and UNHCR.
RTG’s violations of non-refoulement have been motivated chiefly by expedience. Preservation of political and economic relationships, particularly in the region, has at times trumped protection. To rationalize forcible returns, RTG has citedcooperation in criminal matters and Thai immigration law. A 2018 draft of the Regulation incorporated this approach, recognizing the principle of non-refoulement while limiting its application during the administration of deportation, extradition or other laws governing mutual assistance in criminal cases. Clause 15 of the final Regulation drops these exemptions but leaves in an ambiguous exception ‘where national security is threatened’. Refugee advocates worry RTG could interpret ‘national security’ to capture refugees it would prefer to refoule for political advantage.
Many also point out that the Regulation does not recognize non-refoulement protections enshrined in the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT), instruments to which Thailand is party. The omission is deliberate. For years RTG has delayed finalization of a draft Prevention and Suppression of Torture and Enforced Disappearances Act, which would incorporate international legal obligations into domestic law. Scheduled for consideration before Thailand’s National Legislative Assembly in 2019, the act was dropped from the legislative agenda and indefinitely withdrawn by the Ministry of Justice for revision.
Moreover, the Regulation recalls RTG’s use of screening as a deterrent. The preamble frames the screening mechanism as a solution in part to problems connected to asylum seekers and refugees, among them, threats to ‘public order, national security, and international relations’. Similar concerns animated earlier RTG screening processes, which implicitly or explicitly sought to ‘stem the flow’ of asylum seekers. In 1985, RTG began screening Laotian asylum seekers at nine border stations. More than 300,000 Laotians had crossed into Thailand between 1975 and 1984; unsettled by an uptick in new arrivals, and keen to improve relations with Laos, RTG determined to screen out ‘economic migrants’. Observers considered the process an offshoot of RTG’s then policy of ‘humane deterrence’, intended to punish asylum seekers and dissuade border crossings. Similarly, in 1989 RTG began screening Vietnamese asylum seekers under the auspices of the regional Comprehensive Plan of Action (CPA). A response to surging numbers of ‘boat people’ and declining commitments from resettlement countries, CPA screening was conceived to discourage fleeing Vietnamese, most of whom regional governments believed were not refugees.
Lastly, the Regulation continues a policy of temporary refuge in exchange for eventual resettlement. Though RTG has sheltered hundreds of thousands of refugees—often for long periods—it has resisted local integration as a ‘durable solution’, instead using encampment policies to bide time until repatriation is possible, or trading refuge for pledges of resettlement elsewhere. For refugees in Bangkok, resettlement has been the expectation; from 2009 to 2019, an average of 466 urban refugees were resettled annually. The Regulation continues this refuge-for-resettlement arrangement, making RTG responsible for screening asylum seekers and third countries responsible for resettling those determined to need protection. UNHCR, without being named, is expected to continue to coordinate resettlement.
Advocates and experts question whether the Regulation’s assumption about the availability of resettlement is outdated. Owing to a slashing of U.S. annual quotas, the number of refugees resettled from Thailand has fallen. From 2014 through 2016, 1,569 urban refugees in Bangkok were resettled; from 2017 through 2019, the figure was 1,069. President-elect Biden has pledged to raise annual refugee admissions to 125,000, but it is unclear his administration would boost resettlement from Asia. The Obama-era Refugee Admissions Program prioritized resettlement from the Middle East, North Africa, and increasingly Sub-Saharan Africa. Given persistent instability and a shortage of safe third countries in those regions, they are expected to again receive preference.
Without a menu of durable solutions, there are fears the Regulation could lead to ‘warehousing’, a situation in which refugees—unable to return safely to their countries of origin, refused resettlement and denied local integration—are left to wait. Unwilling to host refugees in perpetuity, warehousing might incentivize RTG to apply more restrictive screening criteria. Indeed, when screening Laotian asylum seekers in the mid-1980s, RTG was open about linking refugee status decisions to likelihood of resettlement.
UNHCR as Facilitator
There is no template for transitions from UNHCR RSD to national screening mechanisms. Governments determine, sometimes with little warning, when to begin screening, and their motivations and resources vary. Many transitions are impelled by security, migration management and development concerns, rather than by humanitarian impulse or international obligation. Some transitions have been abrupt—Hong Kong’s occurred in a single year—others have been gradual, beginning for instance with joint government-UNHCR screening. Given variations, and consistent with its project of decentralization, UNHCR has relied on regional and country offices—which in theory better understand their operational contexts—to devise transitions. Most offices as a baseline have committed resources toward shaping legislation and developing local expertise through training and supervision. But strategies have otherwise differed. Some offices have planned complex, multi-year transitions aimed at building the political will and operational capacity of host governments—Kenya is a well-known example. Others have opted for shorter, less costly commitments.
Thailand’s transition will require more than a minimalist, technocratic approach. As the Regulation reflects, RTG continues to chart a middle way between international norms and sovereign interest. And UNHCR alone does not have the clout to persuade a change of course. This is in part because UNHCR’s means of influence are limited. With few coercive powers beyond naming and shaming, UNHCR typically must induce governments with financial and technical support, persuade them with moral authority and socialize them with expertise and supervision. RTG, however, has been resistant to UNHCR influence and oversight. Unconstrained by the Refugee Convention, since the 1970s, RTG has worked with UNHCR when advantageous—in the establishment and administration of refugee camps or in the creation of the CPA—and ignored UNHCR when expedient.
For its part, UNHCR has been reluctant to apply too much pressure lest it jeopardize its operations in Thailand and beyond—Bangkok is the seat of UNHCR’s Regional Office for Southeast Asia. On rare occasions when UNHCR has publically rebuked RTG, the relationship has deteriorated. In January1984, for example, UNHCR’s Secretary General embarrassed RTG by revealing Thai officials had pushed back a boat of Vietnamese asylum seekers, 23 of whom drowned. The incident slowed cooperation for months. Likewise, in the 2000s, UNHCR irritated RTG by issuing press releases claiming Thailand’s deportation of Laos Hmong was ‘tantamount to refoulement’ and ‘contrary to international humanitarian law’. At the time, UNHCR had serious concerns that RTG in retaliation would restrict its access to border camps and curb its ability to conduct RSD. More recently, UNHCR strained relations by publicly criticizing the forced return of ex-guerrilla leader, Moua Toua Ter, to Laos.
Though UNHCR on its own lacks leverage to ensure a legitimate and sustainable RSD transition, UNHCR does have standing to assume a ‘catalytic’ role, marshalling resettlement countries, donors, civil society organizations, and refugees to participate in the creation and implementation of the screening mechanism and related protection framework. RTG’s insistence on responsibility sharing—particularly in the form of resettlement—invites negotiation, and UNHCR is positioned to identify shared interests among stakeholders and to facilitate bargaining around process design and responsibility sharing.
It is a role UNHCR has previously played in the region. Though the CPA’s legacy is contested—observers have rightly decried deficiencies in how asylum seekers were screened—the agreement was nonetheless a feat of diplomacy. Credited with convincing regional governments and resettlement countries that their objectives would best be served through coordination, UNHCR brought together a diverse group of stakeholders to negotiate a complex and interdependent distribution of responsibilities. Many attribute UNHCR’s success to linking refugee protection to a wider set of domestic and foreign policy concerns: the United States recognized the CPA as an opportunity to shore up strategic relationships, while regional governments saw it as a chance to manage migration, win development assistance and enhance political legitimacy.
Wide-ranging negotiations may again be required to move RTG from its current position. Some observers question whether UNHCR—populated more by technocrats than diplomats—still has the capacity to lead such negotiations. Nonetheless, many agree that UNHCR, with the stature of an international organization, stands the best chance of convening a broad body of stakeholders to settle a transition to an acceptable screening mechanism.
Getting RTG’s participation will be difficult. Sensitive about intrusions on national sovereignty, RTG has been reluctant to engage in serious dialogue about the Regulation’s contents. Rather than a critique of RTG refugee policy, UNHCR might speak to RTG’s perennial concerns by framing negotiations as an opportunity for resource and responsibility sharing. The goal would be to elicit contributions from donors, resettlement countries, civil society organizations and refugees themselves in exchange for RTG commitments to observe core international protection norms and expand access to fundamental rights and essential services. For instance, donors and resettlement countries might contribute financial support, technical guidance and resources or resettlement spaces; while civil society organizations and refugee-led initiatives offer legal representation and psychological and social services. In return, the screening mechanism should—for principled and pragmatic reasons—use the term refugee as defined by the 1967 Protocol. UNHCR has elaborated the definition and related substantive standards over decades, and resettlement countries use the definition—or an approximation of it—to determine eligibility for resettlement. The Protocol definition should be a baseline; stakeholders could negotiate the use of an extended definition to reflect a broader range of protection needs. Moreover, the screening process should adhere to international standards of procedural fairness, including rights to legal representation and judicial review. RTG should also be leveraged to countenance local integration for some refugees, and to accept a robust temporary protection regime that provides rights to legal recognition, work, education and health care.
Beyond winning agreement around a transition, UNCHR should also facilitate the creation of a forum for sustained dialogue. Even if a fair screening mechanism observing international norms were negotiated, stakeholders’ interests and behaviour might change over time. Empirical studies explain that norm implementation is not an end point but a dynamic process in which norms can be re-contested and reinterpreted. An influx of asylum seekers, for example, could test RTG’s commitment to a fair screening process if other stakeholders are unwilling to contribute additional support. Donors and resettlement countries too are unlikely to make open-ended commitments. A permanent forum would allow stakeholders to monitor and evaluate the mechanism, to influence one another to honour commitments to responsibility sharing and to renegotiate their commitments where necessary.
There is no guarantee negotiations will succeed. Indeed, there are substantial hurdles to reaching agreement. Drawing on the lessons of Cambodia and Hong Kong, RTG might resist making concessions because there are few real reputational costs for creating a failing screening mechanism. Equally, donors and resettlement countries could conclude that their strategic and economic partnerships with RTG are better preserved by spending resources and political capital elsewhere. Fatigued by decades of resettlement, some might also take the position that Thailand—now an upper-middle income country—should assume greater responsibility for refugees within its borders. What does seem clear, however, is that without an intervention incentivizing RTG to rethink the Regulation, Thailand is set to create a screening mechanism that will fall short of international standards and likely deny protection to many in need.
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