Recent months have witnessed intense negotiations in Thailand's parliament concerning the proposed new law on the protection and promotion of the livelihood of ethnic groups. Can the various gaps be truly bridged?
The draft law already received initial approval from the Lower House and recently received a green light by the Upper House, with senators making some amendments. The final draft will be tabled for a last reading when parliament opens its new session later this month.
There are various pros and cons. The law recognises ethnic groups who reside in Thailand and have a shared history and culture. It validates the concerns of groups as collectivities at a high level of the administration of the state. It will establish an assembly of these groups which will be able to advocate and make claims on their behalf. Such groups should also be able to self-identify as collectivities rather than be classified by the state itself to this end.
Various areas will be designated as special areas where these communities will be able to enjoy power to help manage resources and benefit from the the fruits of the land. The proposed law integrates into the statal framework the notion that displacements of groups should not take place unless the principle of free, prior and informed consent is respected. The latter implies there must be dialogue with groups before development projects are implemented, and this must be based on access to information, substantive consultation and participation, risk mitigation and voluntariness on the part of the concerned groups. Remedies, such as compensation, are also needed.
The draft law is plagued by various loopholes. First and foremost, the notion of indigenous peoples and related rights has been deleted from the draft law. There are two difficulties: the meaning of the word "indigenous" and the plural nature of the word "peoples". The former implies that such groups have been on the territory for a long time -- as the first peoples of the land. In colonial situations, the situation is relatively clear-cut; in other words, those who were living there before the advent of colonisers.
The situation of countries which have not been colonised is more difficult, as there might be contesting views in the historical narrative itself as to whether one group was there before the arrival of another group. The nearest that the global community has come to convergence on this issue is a treaty under the International Labour Organisation of the UN, Convention No 169, which opens the door to recognising indigenous rights for those groups that were present before the rise of present-day state boundaries, as well as those who were there before colonisation. However, Thailand is not yet a party to this treaty.
The other concern is also sensitive. Internationally, there was a debate for decades concerning whether the term "peoples" should be used instead of the word "people". There is a difference between the two. The singular term -- "people" -- is synonymous with the existence of the general population. By contrast, "peoples" is a normative term, indicating that particular groups are vested with various rights collectively, especially the right to self-determination. This is found in two key treaties to which Thailand is a party: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
Non-open systems are afraid of this right because it advocates that power must be shared substantively with the variety of communities of the land; this is the internal element which includes transparent and credible national elections and decentralisation of power. The government should represent the totality of the population and must not be discriminatory or oppressive.
In international law, there is also an external element of the right to self-determination. Where there is a colonial situation, it has long been recognised that colonised communities are entitled to cast off the colonial yoke, including through independence. In non-colonial situations, especially where there are key human rights violations, it validates the claim of these groups to seek other arrangements affecting the power relations and territorial integrity of the state. The most extreme situation is secession, but the external aspect is open to other options such federation, autonomy, and even joining up with other countries.
The plural term and concept of "indigenous peoples", including the right to self-determination, are now found in the UN Declaration on the Rights of Indigenous Peoples for which Thailand voted. The declaration is not a treaty but a global expression of the range of their collective rights. It calls for more self-management by these groups but not to the extent of affecting the territorial integrity of the state where they live. This thus modulates the external element of the right analysed above.
The exclusion of the notion of "indigenous peoples" from the Thai draft law is a political gesture which fails to recognise other groups which are not of the "Thai" identity. Interestingly, under the International Convention on the Elimination of All Forms of Racial Discrimination, the UN Committee's recent vetting of implementation by Thailand mentions these specific groups which are not necessarily "Thai":
"The Committee expresses concern about the reports of direct and indirect, multiple and intersecting forms of discrimination faced by ethnic and ethno-religious groups and indigenous peoples, including the Isaan, Karen, Lahu, Malay Thai, Mani, Moken, and Urak Lawai peoples".
The other key problem concerns Part 5 of the new law which deals which the designation of special areas where ethnic groups can enjoy the fruits of the land. In an early draft, communities favoured the exemption of such areas from the application of national laws, such as laws on forestry, conservation and protected areas. The current draft has discarded this liberal approach and subjects those special areas to national security and national law. This is controversial because it might encroach upon the traditional and ancestral lands of these groups. There might also be a conflict between community mapping and more recent satellite mapping.
The new law is understandingly disappointing to ethnic communities who self-identify as "indigenous peoples". In essence, this country is challenged by the need for plural historical narratives which go beyond the monolithic narrative derived in part from absolutism and in part from non-democratic roots.
There is also a key regional message. The drafting of the forthcoming Asean Declaration on the Right to a Sustainable Environment needs to learn from those lessons and respect the rights of "indigenous peoples" as part of the so-called sacrosanct Asean maxim: "Unity in Diversity."
