Thailand Law Journal 2009 Spring Issue 1 Volume 12

VI. PROVIDING TRUE REFUGE
Thai laws, for the most part, are humane and supportive of Burmese migrants. However, they are largely left unenforced. Widespread ignorance of the laws within the Burmese migrant community, as well as among lower-level governmental officials, and school and public health workers has prevented the implementation of those rights. The Thai government's under-funding of programs to meet the education, labor, and health needs of migrants also undermines the effectiveness and application of these laws.²⁶⁵ In addition, the Kingdom continues to skirt its responsibilities to meet international human rights norms by not seeking to integrate migrants into Thai society or giving them effective access to socioeconomic mobility. These problems must be resolved.

A. Non-Governmental Organizations Must Raise Awareness of Migrants' Rights to Quality Education, Access to Health Services, and Safe Working Conditions
In order to address issues of educational, health, and work inequities previously mentioned, the Burmese migrant community needs outreach and education. Migrants cannot exercise rights that they do not know they possess. Non-governmental organizations (NGOs) should take on this responsibility. Generally, NGOs are more realistically capable of raising awareness within marginalized groups because of their non-governmental and humanitarian character. NGOs also tend to have more connections within migrant communities because they provide direct services, whereas government and inter-governmental agencies work more at the macro-policy level.

Efforts to increase awareness of migrants' legal rights have begun. The International Organization of Migration, with the  cooperation of the Ministry of Labour, recently initiated a campaign entitled "Awareness-raising on migrant rights and welfare for government officials, employers, migrants and host community members."²⁶⁶ The two-year project's goals are to develop workshop modules and to train individuals who can then lead workshops on migrant rights.²⁶⁷ The target areas are the border provinces of Thailand, where large numbers of migrants reside.²⁶⁸ This project is especially important because there is a tremendous lack of knowledge regarding migrant rights, not only within the migrant community, but also among employers and provincial government officials. Educating employers and governmental officials, whose acts and policies have the most direct impact on migrants' lives, is a step in the right direction toward curbing unlawful treatment of migrants.

Although this program is an important contribution, it cannot fully realize legal rights for Burmese migrants on its own. There must be additional campaigns and programs undertaken by civil society. These programs must be sensitive to the language, cultural, and gender differences that exist within the individual ethnic groups that comprise the Burmese migrant community. They must also be sensitive to the differences that exist between the migrant community and general Thai society. A method to ensure the effectiveness of programs within the Burmese migrant community is to train and place Burmese migrants in management and policy positions. This practice is exemplified by the Rak Thai Foundation, a Thai non-profit organization that has consistently been lauded for its efforts in providing reproductive health, family planning, and HIV awareness tools to Burmese migrants.²⁶⁹ Realizing that Burmese migrant women were not using their community clinics because the doctors there were Thai men, the foundation replaced those physicians with Burmese women who were able to provide the language and cultural sensitivity that was crucial to issues involving reproductive health.²⁷⁰ Non-governmental agencies and non-profits should address the widespread ignorance of legal rights through tailored outreach programs similar to this model.

B. The Thai Government Must Clarify Rights of Migrants and Enforce Existing Laws
Even with full and complete awareness, the Burmese migrant community will not be able to exercise their rights without proper enforcement by the Thai government. Policies and laws passed down from the central government are ignored or misinterpreted by different Ministries, provincial officials, and employers. A comprehensive awareness campaign led by the Ministries of Education, Health, Labour, and Interior should be implemented with the goals of clarifying existing law and creating uniformity in how immigration officers, school principals, hospital staffs, and employers understand Thai laws. As discussed above, one area that currently causes widespread confusion is whether birth certificates should be granted to migrant children. Confusion about the law prevents migrants from exerting their rights. It also prevents medical officials from providing services and treatment to migrants because of their own good-faith belief that they are complying with governmental policies.

Additionally, the Thai government must not prevent full realization of migrant rights by depriving lawfully operating hospitals and schools of funding. From school lunches, to textbooks, to bilingual teachers, the government should reimburse schools for all necessary expenses incurred in educating migrant children. If the National Education Act is to have any real effect and meaning, schools cannot be punished for following the law and educating migrant children. Similarly, the government should reimburse hospitals that provide emergency care to migrants, regardless of whether they are registered or not. Without these reimbursements, hospitals will continue to turn away migrants. Deprivation of access to public health services has enormous ramifications, especially for communicable diseases such as bird flu or HIV. Unless the government provides services to all sectors of the migrant community, both legal and illegal, these health risks could potentially spill over into the general Thai population. When much needed governmental  funding is withheld, Thai law becomes, in effect, no law. The Thai government must do more than pass symbolic legislation; it must commit itself to making the ideals incorporated in such legislation a reality.

The government must also divorce immigration law from educational, health, and labor activities. Even if Burmese migrant parents understood their right to send their children to Thai schools, many would not exercise this right out of fear that the government would deport the child or would use the child to find the parents and deport the entire family.²⁷¹ Fear of deportation also prevents non-registered migrants from using health facilities or from reporting gross labor law violations.²⁷² Thus, police officers and immigration officials should be prohibited from using school attendance and medical care for purposes of enforcing immigration policies. Also, the uncertainty of one's immigration status should not be discussed when children are registering for school or when nurses and doctors are administering treatment.

C. The Thai Government Should Reinstate Citizenship by Birth Principles and Seek to Integrate Burmese Migrants into Thai Society
Thailand should reinstate citizenship by birth. It is problematic for Thailand to view ethnic Burmese children born or raised in the Kingdom as inherently alien and unable to naturalize as Thai citizens. Many Burmese migrant children are unfamiliar with Burmese culture and society and are unable to speak Burmese.²⁷³ Growing up or spending their entire lives in the Kingdom, they are almost culturally and socially identical to ethnic-Thais. They speak Thai, they behave like other Thai children, and they have Thai mores and values.²⁷⁴ Denying citizenship to these children ties citizenship to race and ethnicity rather than residence and culture and denies thousands of children the opportunity to integrate into Thai society.

Tying citizenship to race and ethnicity and preventing socioeconomic mobility can be enormously detrimental to all of Thailand. Perceptions of discrimination, whether true or not, by Thai Muslims in southern Thailand have been a factor in numerous bombings,²⁷⁵ murders, and beheadings.²⁷⁶ Resentment caused by the lack of opportunities afforded to minority Muslims in the south has led to violence and turmoil²⁷⁷ similar to conditions that contributed to last year's riots in France's Muslim quarters. ²⁷⁸ Thailand should learn from these experiences in other countries, such as France, that denying full membership in society may have far-reaching detrimental effects.

Thailand has to offer migrants a path toward socioeconomic mobility and integration into Thai society. Without this option, Burmese youths who identify themselves as Thai will become disillusioned and disconnected with the Kingdom. Migrant children, especially unregistered children, will remain within the lowest rungs of Thai society because they cannot receive education or legal employment. These children and youths could turn to antisocial behavior²⁷⁹ including venting their frustrations on the government.

If reverting back to a policy of citizenship by birth is not a viable option, the Thai government should, at the very minimum, ensure that all alien children born in Thailand receive a birth certificate and are registered. This would give Burmese migrant children a chance to obtain Burmese citizenship, which would allow them to return to Myanmar. Returning would relieve Thailand of having to protect or provide for these children, and the children would have the opportunity to gain a meaningful education and occupation back in Myanmar. The likelihood of the migrant children experiencing a better life in Myanmar is slim, especially because many of their parents are poor and uneducated. Nonetheless, it is an option with far less potential for exploitation than staying in Thailand illegally and unregistered.

D. International Organizations and Other Nation-States Committed to Human Rights Must Apply Pressure on Thailand to Ameliorate the Lives of Burmese Migrants
Lastly, the international community should vigilantly monitor Thailand's treatment of Burmese migrants, and should apply public pressure on the country when it denies human rights to its residents and workers. Stories of extrajudicial killings, systemic rape, and murder of migrants in border provinces²⁸⁰ must be not only publicized but also investigated. With Thailand's right of national sovereignty in mind, other nations should diplomatically criticize the Kingdom for lax enforcement of its own laws and for withholding crucial funding to implement those laws. The international community should also strongly urge Thailand to sign and adhere to important international treaties and agreements on issues of migration such as the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families and the Convention on Refugees. In addition, Thailand should be encouraged to repeal the reservations it made with Articles 7 and 22 of the Convention on the Rights of the Child.

VI. CONCLUSION
Thailand faces enormous challenges and tremendous opportunities regarding the issue of migration. Many of the factors contributing to the influx of migration from neighboring countries, especially Myanmar, are not within the Kingdom's control. Yet, Thailand must face the reality that it is a regional leader in development and wealth and is a magnet for migrant workers. Thailand can make migration mutually beneficial, and it has the legal framework to do so. At the minimum, the Thai government simply needs to implement and enforce current laws. The Kingdom should, however, aspire to meet the human rights standards of the international community, especially those dealing with children's rights.

The 2004 Tsunami waves battered the shores of eleven different countries, burying close to a quarter of a million people. As its waves receded, revealing its damage and carnage, the tsunami also shined light onto a quiet atrocity that had been occurring in Thailand for some time -- the plight of Burmese migrants.

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[FN265] See HUGUET & PUNPUING, supra note 58, at 43.

[FN266] Press Release, Int'l Org. of Migration, Press Briefing Notes: Thailand -- Consultative Forums on Migrant Rights (May 17, 2005), available at http://www.old.iom.int/en/archive/PBN170505.shtml (last visited Apr. 28, 2007).

[FN267] Id.

[FN268] Id.

[FN269] Interview with Ma Win, supra note 188.

[FN270] Id.

[FN271] Caroline Guinard, Promising "Education for All" in Thailand: what are the true benefits for migrant children behind this new policy, BURMA ISSUES (Peace Way Foundation, Bangkok, Thailand), Feb. 2006, at 6, 7, available at, http://www.burmaissues.org/En/Newsletter/BINews2006-02-03.html.

[FN272] HUMAN RIGHTS DOCUMENTATION UNIT, supra note 225.

[FN273] Nyo Nyo, supra note 228, at 54.

[FN274] See id.

[FN275] Four hurt in south Thailand bomb blast, BBC MONITORING ASIA PAC. -- POLITICAL, Feb. 16, 2005.

[FN276] Thai Deputy Prime Minister and Interior Ministry Slam Beheading of Innocent Citizen in South of Thailand, THAI PRESS REPORTS, June 24, 2005.

[FN277] Thailand's Restive South, BBC NEWS, July 15, 2005, available at http://news.bbc.co.uk/1/hi/world/asia-pacific/3955543.stm.

[FN278] See Molly Moore, As Youth Riots Spread Across France, Muslim Groups Attempt to Intervene, WASH. POST, Nov. 5, 2005, at A1.

[FN279] HUGUET & PUNPUING, supra note 58, at 64.

[FN280] See generally Arnold & Hewison, supra note 206, at 330.

This article is published with the kind permission of Bryant Yuan Fu Yang, Life and Death Away from the Golden Land: The Plight of Burmese Migrant Workers in Thailand, 8 Asian-Pac. L. & Pol’y J. 485 (2007).