The Hutgyi Dam Project and the rights of Karen stateless in Mae Hong Son, Thailand

By Mueda nawanat

Acknowledgements

 I would like to thank Earth Rights International for giving me this opportunity. This class has helped me improve my English and increase my knowledge on human rights and the environment. I would also like to thank those stateless people that I interviewed for this report.

 Summary

             This report examines stateless people in Sob Moei village of Mae Sam Laeb Sub-district, Sob Moei District, Mae Hong Son Province, and their rights and source of those rights. Sob Moei village site distance from Hat Gyi Dam is only 47 kilometers, and this village is potentially impacted by the Hutgyi Dam. Especially since the dam project is planned to locate in the civil war zone of Karen state, which the Burmese government has never protected those local people’s rights. The governments of Myanmar (Burma) and Thailand signed a Memorandum of Agreement (MOA) on April 24, 2010 to build the Hutgyi Dam without local consultation or even thought to provide this project to the public.

             Stateless people in Sob Moei village are concerned that they will not be able to enjoy their rights to compensation and campaigning. Moreover, they have faced many difficulties to protect their rights such as information closure, frightening tactics, lack of local language information, soldiers supporting.

             This report has found that stateless people (on Thailand side) have rights including campaign rights to protest against the Hutgyi Dam, and compensation rights according to important domestic law and international law, which Thai government has committed to imitate. Those laws protect the stateless people to have campaigning rights and compensation rights.

 Methodology

 The methodology of the research, I looked up information about stateless people before I went to Sob Moei village and I prepare questions for villager interviews. I went to Sob Moei village by boat from Mae SamLaeb to Sob Moei village. I interviewed stateless people and people with Thai citizenship. Some people I interviewed one by one, and some people I interviewed were a family, include father, mother, and child. For law information before I went to interview a lawyer, I sent them my research question first and after that I went to interview the lawyer. For stateless information, I interviewed an academic, which he was very busy so I just sent the  research question to the academic. He wrote back and answered my question.  

 Background

 Stateless People Living along the Salween River Who Will be Affected by the Hydropower Project do not Enjoy the Same Rights as Thai Citizens 

 In the Sob Moei village of Mae Sam Laeb Sub-district, Sob Moei District, Mae Hong Son Province, Thailand, the population is ethnic Karen. The village was set up more than 40 years ago at the confluence of the Salween and Moei Rivers. The Salween River originates on the Tibetan Plateau and flows through China’s Three Parallel Rivers World Heritage Site, before becoming the Salween in Burma and Thailand and the Moei River flows from Ta Song Yang District, Tak Province. Both rivers converge at Sob Moei Village and eventually flow into the Andaman Sea.[1] The river marks the Thai- Burma border; across the river on the opposite side of Sob Moei Village is Karen State, which has been involved in civil war for the past 50 years As a result of the continuous conflicts along the Burma border many people on the Burma side had to flee into Thailand, at Sob Moei Village.

 In 1973, for the first time, the King of Thailand visited Sob Moei Village and after that the King visited the village again two more times. The village has 161 households, and the population is 732 people. Many of the villagers are stateless people; these stateless people can be divided into two groups as follows:

 

1.      Between 1969- 1999 the refugees from Myanmar who fled the civil war began  living in Thailand and there are 48 people in this group

2.      Those people who were born in Thailand to parents from the first group of refugees there are 101 people in this group.

 The governments of Myanmar (Burma) and Thailand signed a Memorandum of Agreement (MOA) on April 24, 2010 with the Chinese construction company Sinohydro to construct the Hutgyi Hydropower Dam Project on the Salween River in Karen State Myanmar about 47km away from Sob Moei Village.

 The investment shares of each of the four consortium partners are as follows: the Electricity Generating Authority of Thailand (EGAT) with 36 percent, the Sinohydro 50%, the Department of Hydroelectric Power Plan (HDPP) 10% and the International Group of Entrepreneur Company (IGOEC) 4% respectively. Hutgyi Dam’s projected electrical generating capacity is 1,360 megawatts (MW). While ten percent of the energy produced is proposed for allocation that will meet domestic needs inside Myanmar, the remaining electricity will be sold to Thailand and sent via a high voltage 500 kilovolt trans-boundary transmission line that would connect with Thailand’s Phitsanulok Power Station 3 (EGAT 2010a)[2].

 Introduction

 The Hutgyi Hydropower Dam Project will cause human rights abuses on both the Thai and Burma sides of the Salween River.  The potential for future international development large-scale projects is increasing. The stateless people, mostly ethnic Karen living along the Salween River on the Thai side are concerned about the impact of the Hutgyi Hydropower Project on their local community as they do not enjoy the same rights as Thai citizensThey fear they will not have a voice in campaigning against this project or any right to compensation under the Thai lawsIt is unclear what tools or strategies exist that could ensure stateless people have rights to participate in campaigns to express their opposition to the Hutgyi Hydropower Project without fear of reprisals from the Thai government.

 sobmoei4

Findings:

 Stateless people living along the Salween River are concerned about the impact of the Hutgyi Hydropower Project on their local community.

 Situation

 The EGAT has not offered the Hutgyi Hydropower Project to the Thai government yet, because EGAT just made a contract for purchasing electricity from the Laos Sayaboury Hydropower Plant. According to the 2019 agreement, the EGAT will import electricity from Laos to Thailand, so EGAT suspended the Hutgyi Hydropower Project because Thailand’s Powerhouse capacity is not enough to support electricity from the Hutgyi Dam.[3]

 According to the Hutgyi Hydropower Project assessment, the high water levels will not flood Sob Moei Village but will impact the high water levels and flood the river bank gardens of the community, so the villagers will lose their river bank gardens. Mrs. Nittaya, a community member said. “We don’t have land titles even though we have lived here a long time. If we are impacted by the Hutgyi Dam Project we don’t know our rights or how we can demand compensation from EGAT or the Thai Government. I have heard the Pak Mun Dam story in Ubon Ratchathani province, Pak Mun villagers have land titles and Thai citizenship and still it is very difficult to demand compensation from government, they must travel back and forth to the government house. Anyway, it would be very difficult for us because we don’t’ have land titles and we are stateless people not free to travel. This is a limitation for us, it’s really impossible to travel to demand compensation at the government house.[4]

 The villagers are aware of the general impact of the dam, so they are very concerned about the potential for loss; livelihoods, community, resources, sources of livelihood and resettlement. Especially stateless people who now face many problems. If the Hutgyi Dam is built it will increase the problems for stateless people.

 In the past, EGAT went to Sob Moei Village around 3-4 times. A community member shared what happened during one of the visits.

 “They explained the Hutgyi Dam Project’s objectives and they ensured us there will be no flooding in Sob Moei Village and if it floods EGAT will pay compensation. But they did not discuss details about how compensation would be paid or who had       rights to compensation … however we didn’t believe them.[5]” Mrs. Pikun said.

 In the past, large-scale development projects were mostly built in the forest, without humans, objection, and with low investment. To the government, stateless people have no rights and no voice, which is why the government has chosen the location for the project in Karen State, Myanmar.

The Role of Stateless People

 Although stateless people join the meetings with EGAT every time, they don’t have a role; they can only listen because EGAT uses only Thai language and did not provide a translator. Most of the stateless people can’t understand Thai language; they only understand their native Karen language. The stateless people who oppose the dam project can only play an active role in their community, as they cannot go to join the campaign with other community members in the province because they do not have permission to travel outside of the village and they don’t understand Thai language.

 Law Information

 In Thailand there are more than 4 million stateless people registered with a stateless card. This does not include stateless people without a stateless card; no one knows exactly how many unregistered stateless people are living in Thailand. The government of Thailand recognizes rule of law and under the 2007 Thai Constitution citizens have equal rights including stateless people.

 1.      The Right to Campaign Under the Thai Constitution

 Stateless people have campaign rights under Section 63 of the Thai Constitution.

 Section 63 says,

“A person shall enjoy the liberty to assemble peacefully and without arms.  The restriction on such liberty under paragraph one shall not be imposed except by virtue of the law specifically enacted for the case of public assembling and for securing public convenience in the use of public places or for maintaining public order during the time when the country is in a state of war, or when a state of emergency or martial law is declared.[6]

 If stateless people want to join the campaign to protest against the development project, they are not free to travel because they must request a permit to travel from the district office. Normally it is very difficult to receive a permit so this is a limitation of stateless people. Stateless people without a stateless people’s card cannot request a permit to travel anywhere also stateless people should live in the community under the Thai Constitution Section 66.

 Section 66 states that,

“Persons so assembling as to be a community, a local community or a traditional community shall have the right to conserve or restore their customs, local knowledge, good arts and culture of their community and of the nation and participate in the management, maintenance, preservation and exploitation of natural resources, the environment and the biological diversity in a balanced and sustainable fashion.[7]

             The community rights under the Thai Constitution have meaning at three levels; community, local community, and Aboriginal communities as the following details:

          People as a group living together, culture, relationship, and leader.

          Community rights used in past by personal, representative or community leader.

          Community has communication with state agency.

 For people without their name in the civil registration system and without a stateless people’s card, community rights do not apply. Sob Moei village has property according to the Thai Constitution and ensure people living in Sob Moei village have equal rights as people with Thai citizenship. 

 2.      Compensation Rights Under the Thai Constitution

 The lack of government accountability in failure to take any actions negatively impacts the population. The government must take responsibility to provide compensation and solve problems caused by the negative impacts from any development project.

 Before the government operates a development project it must follow the Thai Constitution.[8] According to Section 67 which states that,

 “Any project or activity which may seriously affect the community with respect to the quality of the environment, natural resources, and health shall not be permitted unless, prior to the operation thereof, its impacts on the quality of the environment and on public health have been studied and assessed and a public hearing process has been conducted for consulting the public as well as interested persons and there have been obtained opinions of an independent organization, consisting of representatives from private organizations in the field of the environment and health and from higher education institutions providing studies in the field of the environment, natural resources or health.”

If the government does not follow these guidelines stated in Section 67 of the Thai Constitution, the community can demand to stop the project.

Also if any project causes negative impacts, the community can demand compensation and bring a lawsuit against a government agency following Section 67 Paragraph 3 under the Thai Constitution which states that,

“The right of a community to bring a lawsuit against a Government agency, a State agency, a State enterprise, a local government organization or other State authority which is a juristic person for the performance of duties under this provision shall be protected.”

 Stateless people have compensation rights under the Thai Constitution, if stateless people live in the community under the Thai Constitution.

 

3.      Cabinet Solution to Recover the Livelihood of Ethnic Karen

 This Cabinet Solution covers all of the ethnic Karen in Thailand both Karen people with Thai citizenship and Karen people without Thai citizenship. The Cabinet Solution covers livelihood including five issues:

 

1)   Ethnic identity and culture, support society understanding ethnic Karen identity and culture.

2)   Environmental management, to stop, arrest and protect ethnic Karen life in local community.

3)   Heritages succeed, set up community culture center and support culture network activity of ethnic Karen.

4)   Education, community have participant on education curriculum for to be in line with livelihood and culture.

5)   Citizenship, Karen people are stateless people the government shall give stateless people card and give Thai citizenship.

 The development projects have negative impact on the ethnic Karen, this Cabinet Solution does not protect and ensure compensation rights.

International Law

Thailand is a member state of the Universal Declaration and has signed several treaties including:

 

1. International Covenant on Civil and Political Rights – ICCPR

2. International Covenant on Economic, Social and Cultural Rights

3. International Convention on the Elimination of All Forms of Racial Discrimination

4. Convention on the Rights of the Child

5. Convention on the Elimination of All Forms of Discrimination against Women

6. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or           Punishment

 

After each country signs each treaty they shall follow and practice it. Some treaties wrote about rights on nationality including:

 

  1. International Covenant on Civil and Political Rights – (ICCPR)

Article 24[9]:

1.      “Every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

2.      Every child shall be registered immediately after birth and shall have a          name.

3.      Every child has the right to acquire a nationality.”

 

  1. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

Article 5[10]: “(d) Other civil rights, in particular: (iii) The right to nationality;”

 

3.      Convention on the Rights of the Child (CRC).

Article 7 states,

1.      “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

2.      States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.” Positive impact of CRC, who were born in Thailand, state gets birth certificate.

 

International law provides for stateless people, but Thailand has not signed yet. One reason for not signing is because, Thailand has more than four million stateless people[11] and this raises concerns over national security.[12] Stateless people are included under international law including:

 

1.    Convention relating to the Status of Stateless Persons 1954: this convention talks about the status of stateless peoples in each country, how each country take care of them, protection and what kind of rights stateless people have.[13]

 

2.    Convention on the Reduction of Statelessness 1961: this convention talks about how to reduce the number of stateless people and a process for solving stateless people’s problems. In the convention under Article 1 it states, “a Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless.[14]” This means, if Thailand has signed on the convention it shall change domestic law or nationality law to follow with international law. So why has Thailand not signed this convention yet?[15]

 

Conclusion

 

                      The Thai Constitution ensures stateless people’s campaign rights and compensation in Sob Moei Village, but there is a high probability that EGAT and the Thai government will not accept responsibility for Sob Moei Village. If the Thai government does not take responsibility, Sob Moei Village canbring a lawsuit against a government agency.

 

                      Cabinet Solution to Recover the Livelihood of Ethnic Karen does not protect and ensure compensation rights.

 

                      Thailand has not signed the international laws on stateless people, so it is very difficult to obtain Thai citizenship

 

Recommendations

 

            Thailand Government

          The Thai government and EGAT should not build the Hutgyi Dam.

          The Thai government should survey all stateless people in Thailand, because the Thai constitution does not protect stateless people without a stateless card.

          Thailand shall sign oninternational laws on stateless people.

          Cabinet Solution to Recover the Livelihood of Ethnic Karen shall add impacts from development projects to the Cabinet Solution.

 

NGOs and academic

           Give trainings and campaigning on stateless people rights.

           Demand that the Thai government sign the international laws on stateless people.

 

UN

          Pressure the Thai state to sign the international laws for stateless people.

          Other countries that have signed international law for stateless people should pressure Thailand.

 

References

 

          http://www.internationalrivers.org/campaigns/salween-nu-river.

          Nang Shining, Chulalongkorn University, Evaluating the Implementation of EGAT International’s corporate social responsibility policy for the Hat Gyi Dam project on the Salween River, Myanmar.

          Thai Constitution 2007.

          International Covenant on Civil and Political Rights.

          Convention on the Rights of the Child.

          Solve immigrant to Thailand strategy.

          Convention relating to the Status of Stateless Persons 1954.

          Convention on the Reduction of Statelessness 1961.

 


[1] Citation: “Salween/Nu River,” International River, people water, life.

[2] Citation : Nang Shining.

 Chulalongkorn University, Evaluating the Implementation of EGAT International’s corporate social responsibility policy for the Hat Gyi Dam project on the Salween River, Myanmar, 2011, 1.

[3] Interview#1 with NGO, Thailand. Towards Ecological Recovery and Regional Alliance. The EGAT has not offered Hutgyi Hydropower Project.

[4] Citation: Interview#2 with community member in Sobmoei, Thailand. We don’t have land titles.

[5] Citation: Interview#3 with community member in Sobmoei, Thailand. They explained  the Hutgyi Dam project’s objectives.

[6] Citation: Thai constitution 2007, section 63.

[7] Citation: Thai constitution 2007, section 66.

[8] Citation: Thai constitution 2007, section 67.

[9] Citation: International Covenant on Civil and Political Rights, article 24.

[10] Citation: Convention on the Rights of the Child, article 5.

[11] Citation: Solve immigrant to Thailand strategy.

[12] Citation: Interview#4 with Human Rights Academic Expert, Office of The National Human Rights Commission of Thailand.

[13] Citation: Convention relating to the Status of Stateless Persons 1954.

[14] Citation: Convention on the Reduction of Statelessness 1961.

[15] Citation: Interview#5 with lawyer, Center for Protection and Revival of local community rights, if Thailand.

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