Briefing: Six Years After the Committee for the International Convention on Economic, Social and Cultural Rights' (ICESCR) Recommendations

What is happening in Thailand on the land, natural resources, and protection of Human Rights Defenders?


May 22nd, 2021 marked seven years since the National Council for Peace and Order (NCPO) staged a coup and seized power. During the past seven years, the government of Thailand, under the leadership of Prime Minister General Prayuth Chan-o-cha, has used judicial harassment, violence, and threats of violence to repress and intimidate human rights defenders (HRDs). Community-based rural, indigenous, and women human rights defenders face great risks in defending and caring for the land and natural resources.

It is also now six years since Committee for the International Convention on Economic, Social and Cultural Rights (ICESCR) released its Concluding Comments on Thailand. The ICESCR, ratified by Thailand in 1999, is legally binding; therefore, the State is obligated to comply with the recommendations made by the Committee in June 2015, covering 34 key issues. This paper reviews the issues highlighted by the Committee which relate most directly to the land, natural resources, and protection of Human Rights Defenders (HRDs). It aims to reflect the struggles of those who defend their communities, land, and the natural world.

 

Land seizure and concentration

In June 2014, the National Council for Peace and Order issued a “Forest Reclamation'' policy in which the total area of forested land would be increased from 31% to 40% within 10 years.  About a third of the population in Thailand directly depends on land for a living, yet the Committee for ESCR noted that approximately fifty individuals and companies own 90% of the land in Thailand. Nevertheless, that 90% was not the land targeted for seizure.

The ESCR Committee reported that the policies aimed at combatting encroachment had in fact resulted in the destruction of crops and forced evictions, as well as in negative impacts connected to the exploitation of natural resources. They also recommended the urgent need for recognition of Indigenous People’s land rights.

 

Forced Evictions of Farmers, Urban Poor, and Indigenous People

The Thai Government commenting on the lack of recognition of Indigenous Peoples in the Reply to the List of Issues reported to the Committee that “Thailand does not have indigenous peoples”. The government only accepts that there are various ethnic groups in Thailand. While the government seems happy to promote traditional dress and craftwork, they do not recognize the right to ancestral lands. Indigenous People remain unrecognized in the 2017 Constitution and Thai law does not support the relationship Indigenous Peoples have with their lands. The Committee recommended that “the State party, in particular, guarantee the right of indigenous peoples to own, use, control and develop the lands, territories, and resources which they have traditionally owned, occupied or otherwise used or acquired”.  

Contrary to the Committee’s Recommendation, Indigenous Peoples have become even further criminalized for using their customary lands and carrying out traditional practices. Newer laws such as the Community Forest Act B.E. 2562 (2019) and National Park Act B.E. 2562 (2019) Amendment seem to allow people to apply for concessions to use undesignated land. The land available for concessions is just one-third of that being currently occupied by its Traditional Owners.  These concessions in the Community Forest Act do not translate to ownership nor do they secure tenure. The concession is for just 20 years rather than for the generations required. In contrast, investors can make use of land for 50 years in Special Economic Zones (SEZ) and for 99 years in Eastern Economic Corridor (EEC) zones. Indigenous People’s right to the sea is just as tenuous, as they often lack permits and licenses for fishing and get arrested or fined for straying into newly established marine protected areas or island parks.

The implementation of these laws resulted in hundreds of Indigenous families being evicted from their ancestral homelands without adequate resettlement or compensation. It is difficult to establish the exact numbers of those affected as there are no official records. The National Park Amendment increases the fines, restrictions, and carries harsher penalties for using the non-designated areas. Collecting firewood, honey, or mushrooms, which was a way of life, is now considered a serious crime. Those communities who have resisted are severely punished whether by intimidation, judicial harassment, violence, enforced disappearance, and/or extrajudicial killings.

The implementation of these laws resulted in hundreds of Indigenous families being evicted from their ancestral homelands without adequate resettlement or compensation. It is difficult to establish the exact numbers of those affected as there are no official records. The National Park Amendment increases the fines, restrictions, and carries harsher penalties for using the non-designated areas. Collecting firewood, honey or mushrooms, which was a way of life, is now considered a serious crime. Those communities who have resisted are severely punished whether by intimidation, judicial harassment, violence, enforced disappearance and/or extrajudicial killings.

Most recently the forced eviction of Karen villagers from Bang Kloi and the killing of HRD Porlajee “Billy” Rakchongcharoen, have become emblematic of the situation of Indigenous communities’ struggle, and their determination to defend their lands.  On Sept. 3, 2019, the remains of “Billy” – a Karen environmental and community rights defender who was disappeared in 2014 - were found in a submerged oil drum. Billy was last seen by his community while being arrested by Kaeng Krachan National Park superintendent Chaiwat Limlikit-Aksorn and his officers, for allegedly collecting wild honey. To date, no one has been held accountable for Billy’s murder despite the campaign for justice led by his wife Pinnapha Phrueksapan and his community.

The harassment and forced evictions are not confined to Indigenous People. Forced evictions and threats of eviction exist for people in both rural and urban communities. Between 2014 and February 2021, indigenous and local villagers faced 25,000 - 34,000 cases filed by authorities as a consequence of 153,576 hectares (350,487 acres) of land being “reclaimed” as national parks. Many are facing charges of trespass or encroachment and, in some cases, authorities have claimed compensation from the villagers for alleged environmental damage under the Enhancement and Conservation of the National Environmental Quality Act (‘National Environmental Quality Act’). 

The recent conclusion of a crucial legal case in Sab Wai, Chaiyaphum Province has set a new low for the protection of HRDs especially women human rights defenders and poor farming communities against the laws that clearly contradict the International Human Rights obligations of Thailand. The people of Sab Wai had been settled in the area now known as Sai Thong National Park for decades before it was classified as a National Park. They are small-scale cassava farmers, caring for and protecting the forest. In 2019, after campaigning against forced eviction from their land, fourteen community HRDs, nine women, and five men were charged and convicted of criminal trespass and deteriorating the National Forest reserve and the National Park area within Sai Thong National Park1. The Chaiyaphum court handed down prison sentences of up to 14 years, alongside fines ranging from 100,000 – 1,000,000 Baht ($USD 3,200 – 32,000) – the total fine being 4,395,000 Baht ($USD 140,550) - and ordered the eviction of the community.

In May 2021 the Supreme Court upheld the judgment, ruling that the villagers’ cassava plantations and settlement had resulted in damages to the ecological system and the environment, and contributed

to climate change. The HRDs and the Sab Wai community, who were the guardians of the forest, are now homeless, landless, and left in stark poverty.

HRDs and other community members under court orders find their lives are being consumed by preparing and travelling for court appearances. They lose their income and have little time to continue their work of defending community rights. Many also face continuous intimidation via random visits by authorities, surveillance, and threats.

Communities and HRDS continue to bear the devastating consequences of the Forestry Reclamation Policy that had first concerned the ESCR Committee in 2015. The situation has only worsened, and the Committee’s concerns and recommendations have not been sincerely addressed.

 

Development projects, participatory mechanisms and free, prior and informed consent

Hundreds of communities across the country are being directly affected by private and State-owned businesses and development projects.  Protection International works hand in hand with communities and HRDs s who are under threat for pursuing justice and protecting their land and livelihoods, while leases are granted or renewed to private companies and corporations for mining and corporate farming e.g., palm oil, sugar cane and rubber.   Many communities have been struggling for decades to retain their land and to end the environmental devastation especially that caused by extractive industries.

The community consultation and participation process has been inadequate, at best. Consultations are scheduled at times or places that are not accessible to community members, being especially difficult for mothers with small children and disabled community members. One of the clearest examples of how problematic the process is, was the planned public hearing on the controversial huge industrial zone in Chana District, Songkhla Province. The dates selected coincided both with the Ramadan and COVID 19 pandemic lockdown, when gatherings were restricted under the Emergency Decree. Ms Khairiyah Ramanyah , a young 17 y.o. WHRD from the Chana Love Homeland Network camped out in front of Songkhla Provincial Hall, successfully demanding that the hearing was postponed. Prior to the re-scheduled hearing, at least 11 W/HRDs were visited by authorities, heavily surveilled and otherwise intimidated. Public hearings in other regions have also been accompanied by similar intimidation and barriers to participation.

COVID19 restrictions are used to further hamper the community and HRDs participation. In April 2020 W/HRDS and community members who belong to the Network of People Who Own Mineral Resources, wearing masks and standing 1.5 meters apart read a Statement that said that “even though the draconian Emergency Decree is being enforced to prevent citizens from public activities and gatherings, mining companies are free to continue their activities including mining surveys, operations and approval processes during this pandemic. These activities all affect community rights and participation, as well as health concerns”.  They called for the suspension of all mining activities in the same manner community activities had been ordered to suspend. Within hours, WHRD Sunthorn Duangnarong who read out the  Statement was taken to the police station and threatened with being charged for violating: 1) the Public Assembly Act 2) the Emergency Decree, and/or 3) the Communicable Diseases Act.  She was kept for hours and felt, as a trans woman, particularly vulnerable and intimidated

Other development projects are fast tracked without any participation or consent. In June 2017, the government rushed through approval for a high-speed train project without a complete Environmental Impact Assessment (EIA) or a proper public consultation. The approval included the reclassification of designated farmland, allowing them to seize land from farmers to build the infrastructure. According to the government, a total of 2,815 rai (450 hectares) will be seized in northern Bangkok, parts of Ayutthaya and Saraburi, and Nakhon Ratchasima's Pak Chong district. The government said that the victims will be compensated but they did not specify the amount of the compensation. Ironically, the project will also encroach national forest reserves. The communities living on State Railway Land also risk eviction. The Four Slum Region Network demands that the State Railway of Thailand (SRT) provides compensation and accommodation for those evicted and takes care of 30,000 people affected by infrastructure projects related to the high-speed train network.

 

Transnational corporations and other business enterprises

The ICESCR requires that States ensure that companies registered within their borders respect human rights when running cross-border development projects. The Committee recommended Thailand to establish frameworks to address this.

Communities and HRDs in neighboring countries have reported examples of development projects and businesses coming from Thailand which do not respect their rights. For example, the Electricity Generation Authority of Thailand's hydropower development in Laos has resulted in significant land-grabbing and salvage logging to build the reservoirs for the dams.

Likewise, the local people of Tavoy (Dawei) in southern Burma have called for the Thai government to halt the Dawei-Kachanaburi Road and the Dawei Industry Zone being built by the Thai Italian-Thai Development Company. Villagers hung posters saying in English – “Stop building another Map Ta Phut in Dawei.” However, no action to date has been undertaken.

 

Protection of HRDS

There is a long history of violence against HRDs with impunity.   Protection International project For Those Who Died Trying”, has documented at least 72 cases of killings and enforced disappearances of community-based women/human rights defenders in Thailand over the past 50 years Almost all of the perpetrators remain free and have never been brought to justice. There has been little to no progress in the investigation of attacks and threats made against community-based women/human rights defenders in Thailand.

In their 2015 report, the Committee also expressed concern about the lack of an enabling environment for civil society, referring to “reports of enforced disappearances and killings of land rights and environmental activists, with perpetrators often going unpunished.” However, six years later many communities still face constant surveillance, violent attacks, killings, or attempted murder because of their struggles to defend their rights.

In February 2020 Ms. Kannika Wongsiri, WHRD of Sangkhom district, Nong Khai Province was killed by a gunman allegedly hired by a rubber tree plantation owner who was illegally using the community land.

Another recent incident of violence was against the prominent land rights defenders from the Southern Peasant Federation of Thailand (SPFT), Surat Thani Province. On 20 October 2020, a man believed to be employed by the Palm Oil Company shot at community HRD Mr. Dam Onmuang, barely missing his head.  Attacks and death threats against the anti-mining W/HRDs communities are also far too common.

Threats of violence and actual violence are devastating for families and communities.  HRDS s and their families may have to go into hiding, life is disrupted. Those who are injured have the pain of recovery or sometimes permanent disability. The loved ones of those who disappeared or killed, often the mothers, sisters, and wives must pick up the fight for answers and justice.

Besides violence and threats, HRDs face multiple charges and lawsuits, in a trend known as SLAPP – Strategic Litigation Against Public Participation. These cases have been filed by, amongst others, mining corporations, palm oil companies, and some State-run agencies. For example, in addition to a violent attack, a gold mining company with the involvement of some Thai authorities lodged 22 legal cases against members of the women-led community group Khon Rak Ban Kerd (KRBKG), Loei Province. Authorities charged the women with violating the Peaceful Assembly Act simply for gathering to peacefully protest against the damage the mining project was causing in their area.

The most common complaint lodged against HRDs is defamation, which is considered a criminal offense under Thailand’s Penal Code. Since 2017, more than 442 community and rural-based WHRDs have been charged. Frequently, instead of supporting and protecting WHRDs, the Thai government seems to enable companies to engage in judicial and other forms of harassment and intimidation.

In addition, a new threat to human rights and civil society was presented on February 23, 2021, when the Cabinet approved in principle legislation to regulate and curtail the operation of NGOs within the Kingdom’s border. Known as the “Operation of Non-profit Organizations Act” it would, if passed, give the Ministry of Interior the power to direct civil society’s work and to preclude any group from undertaking activities not approved by the Ministry. The draft law carries heavy criminal penalties for breaches of the Act. Thai NGOs claim the cabinet resolution (to approve the draft bill) is “without any legitimacy and contradicts sections 25, 26, 34, 40, and 42 of the Thai Constitution.”

 

Business and Human Rights

The Action Plan for Human Rights Defenders is one of four key areas of the National Action Plan on Business and Human Rights, yet there have been no concrete moves to effectively protect or recognize the work of HRDs. The National Action Plan and subsequent Articles regarding judicial protections do not have the status of law.  There is no clear procedure or provision for fining or otherwise penalizing businesses who have been found guilty of judicial harassment of HRDs. It is clear that the concerns raised by the Committee for ESCR regarding the protection of HRDs and impunity have not been addressed.

 

National Human Rights Commission

A strong National Human Rights Commission (NHRC) is a vital part of the country’s human rights protection framework. The ESCR Committee made recommendations for the government to ensure full independence, address existing problems with the selection process for Commissioners and equip the NHRC to fulfill its mandate.  However, less than a year later in January 2016, the International Coordinating Committee for National Human Rights Institutions (ICC) downgraded Thailand's National Human Rights Commission (NHRC) from full membership to observer status. The UN Office of the High Commission for Human Rights (OHCHR) said on its website that “the NHRC had failed repeatedly to resolve its functional and structural problems.”

The National Human Rights Commission Act B.E. 2560 (2017) Organic Law has only amplified the problems. By July 2019, four Commissioners had resigned: Surachet Satitniramai, Chartchai Suthiklom, Angkhana Neelapaijit, and Tuenjai Deletes. The resigning Commissioners cited new regulations under the NHRC Organic Law restricted their ability to work; prevented commissioners from receiving complaints directly from the public and impinged on the independence of the NHRC. In March 2021, the Sub-Committee on Accreditation of the Global Alliance of National Human Rights Institutions (GANHRI-SCA) after receiving concerns from civil society decided to defer the consideration of the NHRCT's application for re-accreditation for a further 18 months. While ever the NHRC is not stable, HRDs are left without a mechanism to investigate the violations impartially and independently.

HRDs of Thailand are the brave resourceful women, men and people of other genders who rise every day to care for and defend their communities, the land, and natural resources.  Protection International is honored to stand with them and we take this opportunity to thank them all especially for their trust in sharing their stories and journeys with us.

 

Recommendations

We urge the Committee for the ESRC to do all within its power to help ensure the following are achieved:

  • General Prayuth Chan-o-cha and the military-appointed Senate must resign to pave the way for the democratic creation of a people’s Constitution that enshrines the rights of the people.
  • The Thai authorities must suspend the Forestry Reclamation Act, The National Park Act, The Mining Act, and other harmful policies and development projects until genuinely representative legislative structures are in place, with robust participatory mechanisms for community and civil society.
  • The recommendations of the International Coordinating Committee on National Institutions for the Promotion and Protection of Human Rights on the functioning of the NHRC Thailand must be urgently implemented to return the Independence and power to the Commission.
  • Thai authorities must immediately end the violence, intimidation, harassment, and arrests of people who use and care for the land and natural resources in their communities. The government must support communities’ right to continue to manage their areas. This includes penalizing businesses that practice violence and/or judicial harassment (SLAAP).
  • Thai authorities must.
  • Thai authorities should ensure all impending legal cases against HRDs and communities are investigated by the National Human Rights Commission of Thailand, the Law Society of Thailand, and the Office of the Ombudsman of Thailand before they progress further.
  • There must be a thorough, impartial, and urgent judicial review of convictions against communities and HRDs with a view to overturning any rulings not compatible with the ESCR and/or other UN Human Rights treaties.
  • Thai authorities must provide reparations and remedy for all those who have been evicted from their homes and land, or otherwise affected with extra consideration given to the specific needs of women and WHRDs.
  • Thai authorities must publicly recognize and support the role and legitimacy of HRDs in achieving the ESCR, in acknowledgment that HRDs have a vital role in promoting, monitoring, and protecting Human Rights.

 

Reference:

1. Under the National Reserved Forest Act 2016, National Park Act B.E 2562, and Forest Act B.E. 2562.