File Photo: This handout photo taken and released on April 11, 2023 by the Royal Thai Army shows people from Myanmar crossing the Moei river on the Thai-Myanmar border to return from Thailand’s Mae Sot district in Tak province. (Photo by Handout / ROYAL THAI ARMY / AFP)
Mizzima
Against the background of the intensification of the conflict in Myanmar, the widespread violence, and serious human rights violations committed against civilians by all parties to the conflict, UNHCR, the UN Refugee Agency, has just issued an updated “Guidance Note on the International Protection Needs of People Fleeing Myanmar” (May 2024).
Key points in the guidance are as follows:
1. Against the background of the intensification of the conflict in Myanmar, the widespread violence, and serious human rights violations committed against civilians by all parties to the conflict, UNHCR continues to call on all States to allow civilians fleeing Myanmar access to their territories, to guarantee the right to seek asylum, and to ensure respect for the principle of non-refoulement at all times. Pushbacks at land and maritime borders are inconsistent with the principle of non-refoulement. UNHCR recalls that the search-and-rescue regime established under international maritime law needs to be implemented consistently with the requirements of international refugee and human rights law. Rescued persons need to be disembarked as soon as possible in a place of safety where their basic human needs can be met, including food, shelter and medical needs. Individuals forced to flee Myanmar should normally not be detained for reason of their illegal entry or presence.
2. UNHCR calls on States to register all individuals who seek international protection and issue documentary proof of registration to all concerned. To preserve the civilian character of asylum, States would need to assess the situation of arrivals carefully so as to identify those involved in military activities and separate them from the civilian refugee population.
3. All claims of nationals and former habitual residents of Myanmar seeking international protection should be processed in fair and efficient procedures in accordance with international refugee law. Based on recent developments in Myanmar, including the announced entry into force of the People’s Military Service Law, UNHCR is concerned about increased international protection needs for people fleeing Myanmar. UNHCR considers that persons who had to flee Myanmar due to the currently prevailing situation of widespread human rights violations in the context of the conflict between the military, ethnic armed groups (EAGs) and People’s Defence Forces (PDFs), are likely to be in need of international refugee protection under Article 1 of the 1951 Convention Relating to the Status of Refugees (1951 Convention), or under the broader refugee criteria under UNHCR’s mandate, or in regional instruments.
4. The 1951 Convention forms the cornerstone of the international refugee protection regime. Accordingly, a sequential approach is preferred, whereby refugee status is initially assessed under the 1951 Convention definition. However, the broader refugee criteria contained in regional instruments may be applied directly when this is more practical and efficient, including in group situations or specific regional contexts, as long as the 1951 Convention standards of treatment apply. UNHCR stands ready to provide technical assistance and operational support to States to put in place adequate case processing modalities.
5. In view of the volatility of the situation throughout Myanmar, UNHCR does not consider it appropriate to deny international protection to Myanmar nationals and former habitual residents of Myanmar on the basis of an internal flight or relocation alternative.
6. Among people fleeing Myanmar there may be individuals who have been associated with acts that bring them within the scope of the exclusion clauses contained in Article 1F of the 1951 Convention. In such cases, it will be necessary to examine carefully any issues of individual responsibility for crimes which may give rise to exclusion from international refugee protection.
7. Rohingya individuals will generally meet the definition of a “stateless person” contained in Article 1 of the 1954 Convention relating to the Status of Stateless Persons, in view of the Myanmar’s citizenship law and its discriminatory application. UNHCR calls on States to ensure that Rohingya individuals are not denied access to asylum procedures, and are accorded the same standard of protection as refugees who have a nationality, and that due consideration is given to their lack of a nationality.
8. As the situation in Myanmar is volatile and may remain uncertain for some time to come, coupled with the humanitarian emergency in the country, UNHCR calls on States to suspend the forcible return of nationals and former habitual residents of Myanmar, including those who have had their asylum claims rejected. The bar on forcible return serves as a minimum standard and needs to remain in place until such time as the security, rule of law, and human rights situation in Myanmar has significantly improved to permit a safe and dignified return of those determined not to be in need of international protection.
9. Myanmar’s neighbours have a decades-long history of providing protection and assistance to refugees. UNHCR calls on them to continue upholding their international legal obligations and humanitarian tradition of safeguarding the lives of all those forced to flee. UNHCR and its partners stand ready to step up support to national and local authorities in the region to ensure that refugees receive the protection and assistance they need.
