Thailand Law Journal 2009 Spring Issue 1 Volume 12

Although these laws and policies do a great deal in protecting Burmese migrants' health, noncompliance is pervasive. Mirroring the problems faced with labor laws, migrants' awareness of their right to healthcare is equally abysmal. Very few migrants understand the registration system and do not realize that, with the registration fee, they have access to medical services in Thai public healthcare facilities.²²⁰ For this reason, many do not seek medical help even when they are in need of it.²²¹ In addition, there is no systemic policy on the provision of emergency healthcare for unregistered migrants.²²² There have been examples of provinces providing healthcare to Burmese migrants, whether registered or not, such as the healthcare available in the Mukdahan province.²²³ Nonetheless, most Thai public healthcare facilities and hospitals do not provide such services to unregistered migrants.²²⁴ If they were to do so, then the costs accrued would be placed squarely on themselves because the Thai government will not reimburse them.²²⁵ This distinction between regular and irregular, registered and unregistered, only confounds migrants about their right to health. It is also extremely bad public policy. Migrants suffering from communicable diseases do not seek out treatment, which only exacerbates their conditions, and causes them to be a health risk to the general population.²²⁶

D. Citizenship and Statelessness
Thai citizenship law only acts as a detriment to the well-being of Burmese migrants, especially migrant children. There is a growing phenomenon of stateless Burmese children in Thailand.²²⁷ The lack of both Burmese and Thai citizenship essentially ensures that children will be subjected to labor and sexual exploitation.²²⁸ These children cannot get quality education or legal employment in Thailand.²²⁹ More than likely, stateless children are not registered and, therefore, do not have the right to stay or work in Thailand. Thus, these children are extremely vulnerable for recruitment into illegal activities such as prostitution or drug trafficking.²³⁰ In addition, they cannot return to Burma because they do not have proper identification or traveling permits, both of which can only be obtained if they had Burmese citizenship.²³¹

Although these children are born to Burmese migrants, they are not considered Burmese citizens because Myanmar law requires that a child be registered within a month of birth, and a birth certificate must be issued.²³² The certificate allows the child to register in the household registration, which grants access to health services, school, and travel permits.²³³ At the age of twelve, the child can then apply for an identification card with a birth certificate and household registration.²³⁴ Without a birth certificate and a house registration document, a child cannot be officially recognized as a citizen of Myanmar.²³⁵

Burmese migrant children born in Thailand cannot obtain a birth record or get official registration of their births, and thus, are effectively denied any possibility of applying for Myanmar citizenship.²³⁶ The Kingdom has no official guidance on the issuance of birth certificates and registration for alien minors.²³⁷ Thus, whether or not a Burmese migrant child receives a birth certificate largely depends on the hospital and the doctor the child's mother visited.²³⁸ Most Thai hospitals do not provide them with certificates.²³⁹ In Ranong and Samut Sakhon, two areas with high concentrations of Burmese migrants, hospitals remove the birth records of these babies from the doctor's appointment book to prevent the children from claiming Thai nationality.²⁴⁰

The procedural difficulties in obtaining citizenship in Myanmar would not be a problem if Thailand's citizenship law was not hostile towards migrant children. The Nationality Act B.E. 2508, amended by Act B.E. 2535 (1992), describes how Thai nationality can be obtained.²⁴¹ Prior to a 1972 amendment, citizenship could be achieved by reason of birth in Thailand.²⁴² Currently, however, citizenship by birth (jus sanguinis) can be obtained if the child's mother or father holds Thai nationality, regardless of where the birth occurs.²⁴³ Thai nationality can also be obtained by birth if the child is born within Thailand's border (jus soli), but exceptions exist.²⁴⁴ Burmese migrant children are barred benefit from the jus soli provision by an additional clause that states:

A person born within the Thai Kingdom of alien parents does not acquire Thai nationality if at the time of his birth, his lawful father or his father who did not marry his mother, or his mother was:
(1) the person having been given leniency for temporary residence in Kingdom as a special case;
(2) the person having been permitted to stay temporarily in the Kingdom;
(3) the person having entered and resided in the Thai Kingdom without permission under the law on immigration²⁴⁵

Therefore, if the child's mother is a Burmese migrant and is in the Thai Kingdom either illegally or via temporary permission, the child cannot become a Thai citizen. Even when Burmese migrants follow Thai immigration laws and enter the country legally, their children are afforded no protection. With both Thai citizenship and Burmese citizenship unavailable to them, Burmese migrant children become stateless.

In addition to not gaining Thai citizenship at birth, it is also highly improbable that Burmese migrants can obtain citizenship through the naturalization process. The Nationality Act states:

An alien who possesses the following qualifications may apply for naturalisation as a Thai:
(1) becoming sui juris in accordance with Thai law and the law under which he has nationality;
(2) having good behaviour;
(3) having regular occupation;
(4) having a domicile in the Thai Kingdom for a consecutive period of not less than five years till the day of filing the application for naturalisation;
(5) having knowledge of Thai language as prescribed in the Regulations.²⁴⁶

Textually, the Act does not explicitly prohibit Burmese migrants from naturalization. It does not mention that immigrants who enter the country illegally cannot apply for citizenship. Likewise, while Chapter 1 § 7 of the Act bars alien children, whether their parents entered the country legally or illegally, from citizenship at the time of birth, it never mentions whether these same children can apply for citizenship once they become of age and qualify under the five requirements laid out in Chapter 1 § 10.  ²⁴⁷ Theoretically, a Burmese migrant who is at least twenty years old,²⁴⁸ has had regular occupation, has lived in Thailand for more than five years, and is competent in the Thai language could apply for naturalization.

Nonetheless, Burmese migrants will undoubtedly be excluded from the naturalization process. There is great discretion involved in granting citizenship. The discretion to grant,²⁴⁹ and even to revoke,²⁵⁰ citizenship lies with the Minister of Interior. The requirement that aliens must be of "good behavior" will most likely exclude migrants who entered the country illegally. Similarly, the Thai government has ensured that Burmese migrants who enter the country legally with the government's permission will be unable to naturalize. The Nationality Act mandates that an alien must have resided in Thailand for a consecutive period of no less than five years.²⁵¹ As stated earlier, the Memorandum of Understanding with Myanmar permits Burmese migrants to apply to stay for two years, with a possibility of extending for another two years.²⁵² However, after four years, the Burmese migrant must return to Myanmar for a three year period before reapplying to work in Thailand.²⁵³ These policies essentially guarantee that no Burmese migrant will be able to participate in the naturalization process.

Thailand's domestic laws may not provide a cause of action, but its international obligations do. Thailand ratified the International Covenant on Civil and Political Rights (ICCPR) on December 29, 1996.²⁵⁴ According to Article 24 of the ICCPR, children have the right to be registered immediately after birth, the right to have a name, and the right to acquire a nationality.²⁵⁵ Although Thailand did make reservations and declarations to the ICCPR, it did not do so on Article 24.²⁵⁶ The Kingdom made reservations and declarations on Article 1,²⁵⁷ Article 6,²⁵⁸ Article 9,²⁵⁹ and Article 20²⁶⁰ but fully accepted the rest of the terms outlined in the Covenant. Thus, Thailand is legally bound to distribute birth records and to register Burmese migrant children.

The ICCPR is not the only international treaty that Thailand may be violating in regards to the issue of statelessness. The Convention on the Rights of the Child (CRC), which Thailand ratified on April 26, 1992,²⁶¹ specifically addresses the issue of statelessness and birth registration in Article 7, stating:

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.²⁶²

Fearing that ratification of this part of the Convention would obligate Thailand to address the issue of statelessness, the Kingdom reserved its right to not enforce Article 7 and Article 22, stating, "[T]he application of articles 7 [and] 22 . . . of the Convention on the Rights of the Child shall be subject to the national laws, regulations and prevailing practices in Thailand."  ²⁶³ However, these reservations do not release the Kingdom from duties imposed by the Convention on the Rights of the Child. Thailand's continued silence and inaction on the issue of statelessness is contrary to the object and purpose of the CRC and Article 2 of the Convention, which stipulates:

States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.²⁶⁴

Thus, it is clear that the Kingdom must meet its duties as required by international law and grant Burmese migrant children birth records, official registration, and a right to nationality.

[FN220] David Wilson, Meeting the Health Needs of Migrant Workers Affected by the Tsunami: Burmese migrant workers in Thailand are a vulnerable group, PLOS MEDICINE (June 28, 2005), http://medicine.plosjournals.org/perlserv/?request=get-document&doi=10.1371/journal.pmed.0020176.

[FN221] Id.

[FN222] Id.

[FN223] Mr. Chamnan Kiartwongnok, Department of Labour Protection and Welfare, Mukdahan Consultative Forum, supra note 143.

[FN224] HUGUET & PUNPUING, supra note 58, at 71.

[FN225] See id. at 38.

[FN226] HUMAN RIGHTS DOCUMENTATION UNIT, HUMAN RIGHTS YEARBOOK: IN BURMA 2003, (2004), http://www.ibiblio.org/obl/docs/HRDU2003-04/The%20Situation%20of%20Migrant%20Workers.htm.

[FN227] HUGUET & PUNPUING, supra note 58, at 64.

[FN228] Nyo Nyo, Burmese Children in Thailand: Legal Aspects, 10 LEGAL ISSUES ON BURMA J. 51, 52 (2001).

[FN229] HUGUET & PUNPUING, supra note 58, at 64.

[FN230] Id.

[FN231] HUMAN RIGHTS DOCUMENTATION UNIT, supra note 225.

[FN232] CAOUETTE & PACK, supra note 72, at 33.

[FN233] Id.

[FN234] Id.

[FN235] Id.

[FN236] See id.

[FN237] HUMAN RIGHTS DOCUMENTATION UNIT, supra note 225.

[FN238] Nyo Nyo, supra note 228, at 54

[FN239] HUMAN RIGHTS DOCUMENTATION UNIT, supra note 225.

[FN240] Nyo Nyo, supra note 228, at 54; see also Poona Antaseeda, Children of a Lesser Nation, Bangkok Post, Oct. 7, 2001.

[FN241] Nationality Act, B.E. 2508, amended by Acts B.E. 2535, Ch. 1 § 7(1) (1992) (Thail.).

[FN242] Nyo Nyo, supra note 228, at 54.

[FN243] See Nationality Act, supra note 241.

[FN244] Id. at Ch 1 § 7 (2).

[FN245] Id. at Ch. 1 § 7 bis.

[FN246] Id. at Ch. 1 § 10.

[FN247] Id. at Ch. 1 § 7.

[FN248] Thail. Civil and Commercial Code § 19 states, "A person, on the completion of twenty years of age ceases to be a minor and becomes sui juris."

[FN249] Nationality Act, supra note 241, at Ch. 1 § 12

[FN250] Id. at Ch. 2 § 19

[FN251] Id. at Ch. 1 § 10.

[FN252] HUGUET & PUNPUING, supra note 58, at 36.

[FN253] Id.

[FN254] OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, STATUS OF RATIFICATIONS OF THE PRINCIPAL INTERNATIONAL HUMAN RIGHTS TREATISES 10 (June 9, 2004), available at http://www.unhchr.ch/pdf/report.pdf.

[FN255] International Covenant on Civil and Political Rights art. 24, Dec. 9, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].

[FN256] OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: DECLARATIONS AND RESERVATIONS, available at http://www.ohchr.org/english/countries/ratification/4_1.htm.

[FN257] Thailand interpreted "self determination" as being compatible with the definition used in the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights on June 25, 1993. Id.

[FN258] Article 6, paragraph 5 states, "Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women." ICCPR, supra note 216, art. 6, para. 5.
The kingdom expressed its belief that its Penal Code complies with the principle enshrined in the Covenant because it gives Thai courts the opportunity to use age as a mitigating factor and in practice the death penalty has not been imposed on any person under the age of 18 years. See DECLARATIONS AND RESERVATIONS, supra note 217.

[FN259] Article 9, paragraph 3 states, "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release." ICCPR, supra note 255, art. 9, para. 3.
The kingdom declared that the Criminal Procedure Code of Thailand provides that a person in cannot be kept in custody for more than 48 hours. However, it reserved the right to extending the period "as long as such necessity persists," but also declaring that the period cannot be longer than 7 days. See DECLARATIONS AND RESERVATIONS, supra note 256.

[FN260] Thailand interpreted the term "war" to mean "war in the contravention of international law." Id.

[FN261] STATUS OF RATIFICATIONS, supra note 254.

[FN262] Convention on the Rights of the Child art. 7, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].

[FN263] Thailand: Not so Smiling to Its Indigenous Hill Tribes, Asian Ctr. for Human Rights Review, July 31, 2005, available at http://www.achrweb.org/Review/2005/81-05.htm.

[FN264] CRC, supra note 261, at art. 2.

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).