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Thailand Law Journal 2014 Spring Issue 1 Volume 17

B KEY TERMS

1 Child

The Convention on the Rights of the Child (CRC) states that "a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier."32 The Thai Child Protection Act 2003 (Child Act) also asserts that a child is any individual under the age of 18 years. However an individual becomes sui juris through marriage and thus even if under 18 years of age a married individual does not constitute a child.33

Marriage is permitted for individuals aged 17 or above,34 the court may however, "in case of having appropriate reason" allow individuals to marry earlier.35 There is no set age limit for these cases. The Thai Criminal Code 1956 (Criminal Code) states age of consent to be 15. However if a man has sexual intercourse with a girl aged over 13 years of age, she consents and the Court grants the girl and man to marry afterwards, the man will not be criminally responsible.36 There is no such law pertaining to boy's age of consent. No international law sets an age limit for consent to marry.

Thus it may be concluded, for the purpose of this study, that the term child applies to any individual not yet over 13 years of age and any individual under 18 years of age who is not legally wed.

2 Asylum Seeker

There are no laws in Thailand pertaining to asylum seekers. Claims for asylum in Thailand are handled by the UNHCR,37 which defines an asylum seeker as: someone who has applied for refugee status and is awaiting that claim to be determined.38

For the purpose of this study an asylum seeker will mean any individual who has made a claim with the UNHCR in Thailand that they are a refugee and are still awaiting the outcome of that claim.

3 Refugee

According to the 1951 Convention Relating to the Status of Refugees (Refugee Convention) a refugee is an individual who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."39

Thailand has no law pertaining to refugees. the UNHCR in Thailand has the objective of ensuring principles of asylum are respected.40 An asylum seeker must meet the aforementioned criteria, and not have applied to them one or more of the exclusion clauses,41 during their interview process conducted by the UNHCR in Thailand, to be recognised as a
refugee.42

A refugee, for the purpose of this study shall mean anyone recognised as a refugee by the UNHCR in Thailand.

4 Stateless

The Convention Relating to the Status of Stateless Persons (Stateless Convention) asserts that: "the term 'stateless person' means a person who is not considered as a national by any State under the operation of its law."43

A national is defined as someone who is a citizen or subject of a particular country.44 Thai nationality is acquired at birth through either jus sanguinis45 or jus soli.46 Jus soli does not apply in certain cases, explored in Chapter 3. Thai nationality may also be obtained through marriage47 and naturalisation.48

Stateless, for the purpose of this study, will apply to any individual residing in Thailand who is not recognised as a national of Thailand or any other country.

5 Trafficking

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol) asserts that trafficking with regard to children is different from the general definition of trafficking stated in Article 3(a).49 Article 3(c): "The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered 'trafficking in persons'" even if this does not involve any of the means in Article 3(a).50 Removing, inter alia the need to be threatened or coerced, and the minimum standards of exploitation needed in order to constitute as trafficking in persons under Article 3(a).51 The Thai Anti-Trafficking in Persons Act 2008 (Anti-Trafficking Act) further adds that: Procuring, buying, selling, vending and detaining or confining a child for the purpose of exploitation are acts that would result in an individual being guilty of trafficking in persons.52 The subjection of a child to the above stated treatment will constitute
trafficking for the purpose of this study.

It should be noted that people smuggling is different from trafficking as people smuggling must involve irregular migration whereas trafficking may be via regular or irregular migration. People smuggling is also a means of facilitation for profit rather than exploitation.53

6 Rights and Protection

For the purpose of this study 'rights' shall mean: An interest which will be recognised and protected by a rule of law, respect for which is a legal duty, violation of which is a legal wrong.54 This study will concern the positive rights55 stated in the relevant documents. Natural rights56 and rights with customary status57 will not be examined. States are the primary duty bearers of rights,58 as individuals become the right-holders.59

Rights will be analysed regarding their nature as absolute rights, qualified rights and derogable rights.60 This is pertinent due to Thailand's turbulent political situation and the military coup in May 2014:61 If a state of emergency is proclaimed Thailand may legally derogate from certain rights.62

Protection: For this study means "To defend something against harm."63 Protection thus concerns the laws that defend the target populations from becoming victims of trafficking as well as the laws that defend identified trafficking victims from harm.

[1]  [2]  [3]  [4]  [5]  [6]  [7]  [8]  [9]  [10]

[11]   [12]  [13]  [14]  [15]  [16]  [17]  [18]  [19]

27 'Cultural, economic and legal factors underlying trafficking in Thailand and their impact on women and girls
from Burma' (n5) 828-829
28 UNIAP, 'UNIAP Thailand' <http://www.no-trafficking.org/thailand.html> accessed 06 June 2014
29 UNODC, 'People vulnerable to human trafficking (PVHT)' (n4)
30 International Organization for Migration (IOM), IOM 2011 Case Data on Human Trafficking: Global
Figures & Trends (February 2012) 30, 31
31 Humantrafficking.Org, 'Thailand' <http://www.humantrafficking.org/countries/thailand> accessed 06 June
2014, UNIAP, 'UNIAP Thailand' (n28)
32 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990)
1577 UNTS 3 (CRC) art 1
33 Thailand Child Protection Act, B.E 2546 (2003) (Child Act)
<http://www.burmalibrary.org/docs07/2003_Child_Protection_Act(en).pdf> accessed 06 June 2014 Section
4, Thailand Civil and Commercial Code, B.E 2468 (1925) Book 1 <http://thailaws.com/law/t_laws/TCCCbook1.
pdf> accessed 06 June 2014 Section 20
34 Thailand Civil and Commercial Code, B.E 2468 (1925) Book V <http://thailaws.com/law/t_laws/TCCCbook5.
pdf> accessed 06 June 2014 Section 1448
35 Ibid Section 1448
36 Thailand Criminal Code, B.E. 2499 (1956) (Criminal Code)
<http://thailaws.com/law/t_laws/tlaw50001.pdf> accessed 06 June 2014 277
37 UNHCR, Interviewing Applicants for Refugee Status (RLD 4) (1995) Viewable at:
<http://www.unhcr.org/publ/PUBL/3ae6bd670.pdf> accessed 06 June 2014, Statute of the Office of the
United Nations High Commissioner for Refugees, UNGA Res 428(V) (14 December 1950) 325th Plenary
meeting annex 6, 8
38 UNHCR, 'Asylum-Seekers' <http://www.unhcr.org/pages/49c3646c137.html> accessed 06 June 2014,
UNHCR, Asylum Levels and Trends in Industrialized Countries (2011) Viewable at:
<http://www.unhcr.org/4e9beaa19.pdf> accessed 06 June 2014 3, UNHCR, 'Asylum in the UK'
<http://www.unhcr.org.uk/fileadmin/user_upload/pdf/Asylum_in_the_UK.pdf> accessed 06 June 2014
39 Refugee Convention (n2) art 1(a)(2)
40 UNHCR, Thailand (Global Report 2000) Viewable at: <http://www.unhcr.org/3e23eb71b.pdf> accessed 06
June 2014
41 "(d) This Convention shall not apply to persons who are at present receiving from organs or agencies of the
United Nations other than the United Nations High Commissioner for Refugees protection or assistance.
When such protection or assistance has ceased for any reason, without the position of such persons being
definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the
United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.
(e) This Convention shall not apply to a person who is recognized by the competent authorities of the country
in which he has taken residence as having the rights and obligations which are attached to the possession of
the nationality of that country.
(f) The provisions of this Convention shall not apply to any person with respect to whom there are serious
reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the
international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that
country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations." Refugee
Convention (n2) art 1(d)-(f)
42 UNHCR, Interviewing Applicants for Refugee Status (RLD 4) (n37) UNGA Res 428(V) (n37) annex 6, 8,
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention
and the 1967 Protocol relating to the Status of Refugees (Geneva, January 1992) HCR/IP/4/Eng/REV.1 28
43 Stateless Convention (n2) art 1(1)
44 Jonathan Law (ed.), Oxford Dictionary of Law (7th ed., Oxford University Press 2013) 362
45 Thailand Nationality Act, B.E. 2508 (1965) (Nationality Act) As amended by Acts No. 2 and No. 3, B.E.
2535 (1992) and the Act No. 4, B.E. 2551 (2008) <http://thailaws.com/law/t_laws/tlaw0474.pdf> accessed
07 June 2014 Section 7(1)
46 Ibid Section 7(2)
47 Ibid Section 9
48 Ibid Section 10-12(1)
49 "the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of
force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position
of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person
having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum,
the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services,
slavery or practices similar to slavery. servitude or the removal of organs;" Trafficking Protocol (n2) art 3(a)
50 Ibid art 3(c)
51 Evident in the difference between the two provisions. Ibid 3(a),3(c)
52 Thailand Anti-Trafficking in Persons Act, B.E. 2551 (2008) (Anti-Trafficking Act)
<http://www.baliprocess.net/files/Thailand/1.%20trafficking_in_persons_act_b.e%202551%20(eng.).pdf>
accessed 07 June 2014 art 6(1)
53 Tom Obokata, 'Trafficking of Human Beings as a Crime against Humanity: Some Implications for the
International Legal System' [2005] The International and Comparative Law Quarterly 445, 448
54 John W. Salmond, Jurisprudence (Stevens & Haynes 1902) 219, L.B. Curzan & P.H. Richards, The
Longman Dictionary of Law (7th ed., Pearson Education Ltd 2007) 513, Mick Woodley (ed.), Osborns
Concise Law Dictionary (11th ed., Thomas Reuters 2009) 365
55 Rights codified in law. Ilias Bantekas & Lutz Oette International Human Rights Law and Practice
(Cambridge University Press 2013) 14
56 Rights by virtue of being human, applicable to all. Ibid 13,14
57 There is uncertainty as to which rights have customary status. Customary status referring to that established
in international customary law. Ibid 59-60 'international custom, as evidence of a general practice accepted as
law' Statute of the International Court of Justice (1945) art 38
58 Evident in numerous treaties and resolutions. For example: International Covenant on Civil and Political
Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR),
International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into
force 3 January 1976) 993 UNTS 3 (ICESCR), UDHR (n1), UNHRC, Twenty Fifth Session 'Enhancement of
international cooperation in the field of human rights' (12 March 2014) UN Doc A/HRC/25/L.3 1
59 Ilias Bantekas & Lutz Oette (n55) 72
60 Ibid 73



 

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