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Thailand Law Journal 2014 Spring Issue 1 Volume 17

C LAW

This section will explore the legal framework and present the law that is to be analysed in the second and third chapter.

1 International Law

Any treaty to which Thailand has acceded is a treaty to which Thailand has consented to be legally bound.64

Thailand acceded to the International Covenant on Civil and Political Rights (ICCPR) in 199665 and the International Covenant on Economic Social and Cultural Rights (ICESCR) in 1999.66 Thailand has not however signed the optional protocol to either the ICESCR67 or ICCPR68 which concern communication procedures.69

Thailand acceded to the Convention on the Rights of the Child (CRC) in March 1992.70 In 2006 Thailand acceded to the First and Second Optional Protocol's concerning the involvement of children in armed conflict and the sale of children, child prostitution and child pornography respectively.71 In September 2012 Thailand ratified the Optional Protocol regarding communication procedure:72 Allowing for individual and group complaints to the UN Committee on the Rights of the Child.73

Thailand ratified the International Labour Organization (ILO) Worst Forms of Child Labour Convention (Child Labour Convention) on 16 February 2001.74

In October 2013 Thailand acceded to the Trafficking Protocol,75 which states its purpose as being to combat trafficking, paying particular attention to women and children, and to protect and assist victims.76

It is necessary to examine the relevant international treaties to which Thailand is not a party,77 meaning Thailand is not bound by these treaties.78

Thailand has not signed the Refugee Convention,79 meaning, as previously explored, the UNHCR in Thailand has the role of providing international protection to asylum seekers and refugees.80 Thailand has also not signed the Convention Relating to the Status of Stateless Persons81 or the Convention on the Reduction of Statelessness;82 stateless individuals may
seek assistance from the UNHCR.83 The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families is another treaty to which Thailand has not signed,84 this treaty does not apply to the target populations85 but does offer protection to children who are non-nationals.86

Finally Thailand has signed but not ratified the International Convention for the Protection of All Persons from Enforced Disappearance,87 meaning that Thailand is not bound by the treaty but is obliged to refrain from acts which would defeat the object and purpose of the treaty. 88

The object and purpose of the treaty is presented in the Preamble as being: to prevent enforced disappearance, combat impunity for the crime of enforced disappearance, to consider the rights of victims to justice, reparation and to seek, receive and impart information pertaining to someone's disappearance.89

2 Regional Law

Thailand, along with the 9 other ASEAN member States adopted the AHRD via the Phnom Penh Statement in November 2012.90 The Declaration is soft law and does not place legally binding obligations upon states.91

Thailand has been a member of The Coordinated Mekong Ministerial Initiative against Trafficking (COMMIT) since its first inter-ministerial meeting in 2004; a government led process to create an effective system of cooperation between Thailand, Laos, China, Cambodia, Vietnam and Burma to tackle human trafficking.92 Thailand signed the Memorandum of Understanding on Cooperation against Trafficking in Persons in the Greater Mekong Sub-Region (COMMIT MOU) in 2004.93

3 Bi-Lateral Law

Thailand has Memoranda of Understanding (MOU) with Lao PDR, Burma and Cambodia as well as an Agreement with Vietnam to combat or eliminate trafficking in persons, especially women and children.94

4 Domestic Law

Any domestic legislation concerning the relevant provisions under international, regional or bi-lateral law will be explored. Some of the most pertinent legislation includes inter alia:

The Constitution of the Kingdom of Thailand 2007 (Thai Constitution),95 The Child Act,96

The Thai Immigration Act 1979 (Immigration Act),97 the Criminal Code,98 the Anti- Trafficking Act99 and the Prevention and Suppression of Prostitution Act 1996 (Prostitution Act).100

Eight MOU's exist among, or between State agencies, Non-Governmental Organisations and Concerned Agencies regarding operational guidelines and procedures for addressing trafficking in persons.101 Only The MOU on Common Operational Guidelines for Government Agencies Engaged in Addressing Trafficking in Children and Women (Gov MOU) and the MOU on Operations between State Agencies and NGOs Engaged in Addressing Trafficking in Children and Women (Gov-NGO MOU) will be examined in this study. The others will not be examined as they only apply to certain provinces in Thailand,
the two aforementioned MOU's apply to the whole of Thailand and thus the whole of the target populations.

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

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

61 Kate Hodal, 'Coup needed for Thailand 'to love and be at peace again' - army chief' (The Guardian 23 May
2014) <http://www.theguardian.com/world/2014/may/22/military-coup-thailand-peace-general-prayuth-chanocha>
accessed 09 June 2014
62 ICCPR (n58) art 4
63 Peter H. Collin Dictionary of Law (4th ed., Bloomsbury 2005) 238
64 Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155
UNTS 331 (Vienna Convention) art 2(b)
65 United Nations Treaty Collection, 'International Covenant on Civil and Political Rights'
<https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en>
accessed 09 June 2014
66 United Nations Treaty Collection, 'International Covenant on Economic, Social and Cultural Rights'
<https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en>
accessed 09 June 2014
67 United Nations Treaty Collection, 'Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights' <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3-
a&chapter=4&lang=en> accessed 09 June 2014
68 United Nations Treaty Collection, 'Optional Protocol to the International Covenant on Civil and Political
Rights' <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
5&chapter=4&lang=en> accessed 09 June 2014
69 Allowing for individual complaints to the treaty monitoring bodies. Optional Protocol to the International
Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999
UNTS 171, Optional Protocol to the International Covenant on Economic Social and Cultural Rights
(adopted 10 December 2008, entered into force 5 May 2013) UN Doc A/63/435
70 United Nations Treaty Collection, 'Convention on the Rights of the Child'
<https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en>
accessed 09 June 2014
71 United Nations Treaty Collection, 'Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in Armed Conflict' <https://treaties.un.org/pages/ViewDetails.aspx?
src=TREATY&mtdsg_no=IV-11-b&chapter=4&lang=en> accessed 09 June 2014, United Nations Treaty
Collection, 'Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography' <https://treaties.un.org/pages/ViewDetails.aspx?
src=TREATY&mtdsg_no=IV-11-c&chapter=4&lang=en> accessed 09 June 2014
72 United Nations Treaty Collection, 'Optional Protocol to the Convention on the Rights of the Child on a
communications procedure' <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
11-d&chapter=4&lang=en> accessed 09 June 2014
73 Optional Protocol to the Convention on the Rights of the Child on a communications procedure (adopted 19
December 2011, entered into force 14 April 2014) UN Doc: A/RES/66/138 art 5
74 International Labour Organization, 'Ratifications for Thailand' <http://www.ilo.org/dyn/normlex/en/f?
p=NORMLEXPUB:11200:0::NO::P11200_COUNTRY_ID:102843> accessed 10 July 2014
75 United Nations Treaty Collection, 'Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations Convention against Transnational
Organized Crime' <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-
a&chapter=18&lang=en> accessed 09 June 2014
76 Trafficking Protocol (n2) art 2
77 "'party' means a State which has consented to be bound by the treaty and for which the treaty is in force;"
Vienna Convention (n64) art 1(f)
78 To consent to be bound by a treaty a State must have accessioned to, accepted, approved or ratified a treaty.
Ibid art 2(b)
79 United Nations Treaty Collection, 'Convention relating to the Status of Refugees'
<https://treaties.un.org/pages/ViewDetailsII.aspx?
&src=TREATY&mtdsg_no=V~2&chapter=5&Temp=mtdsg2&lang=en> accessed 09 June 2014
80 UNGA Res 428(V) (n37) annex art 1
81 United Nations Treaty Collection, 'Convention relating to the Status of Stateless Persons'
<https://treaties.un.org/pages/ViewDetailsII.aspx?
&src=TREATY&mtdsg_no=V~3&chapter=5&Temp=mtdsg2&lang=en> accessed 09 June 2014
82 United Nations Treaty Collection, 'Convention on the Reduction of Statelessness'
<https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=V-4&chapter=5&lang=en>
accessed 09 June 2014
83 Question of the establishment, in accordance with the Convention on the Reduction of Statelessness, of a
body to which persons claiming the benefit of the Convention may apply, UNGA Res 3274 (10 December
1974) 2311th Plenary meeting 1, UNGA Res 49/169 (23 December 1994) UN Doc A/RES/49/169 20
84 United Nations Treaty Collection, 'International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families' <https://treaties.un.org/pages/ViewDetails.aspx?
src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en> accessed 09 June 2014
85 International Convention on the Protection of the Rights of All Migrant Workers and Members of their
Families (adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3 art 3(d)
86 Ibid art 17(6), art 29, art 30, art 44(2)
87 United Nations Treaty Collection, 'International Convention for the Protection of All Persons from Enforced
Disappearance' <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
16&chapter=4&lang=en> accessed 09 June 2014
88 Vienna Convention (n64) art 18
89 International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20
December 2006, entered into force 23 December 2010) UN Doc: A/61/448 preamble
90 Association of Southeast Asian Nations (ASEAN) 'ASEAN Human Rights Declaration and Phnom Penh
Statement on the Adoption of the ASEAN Human Rights Declaration' (Phnom Penh 19 November 2012)
(AHRD)
91 Jonathan Law (n44) 156, Malcolm N. Shaw International Law (6th edn, Cambridge University Press 2013)
117-119
92 Coordinated Mekong Ministerial Initiative Against Trafficking (COMMIT), Summary of the 6th Commit
Senior Officials Meeting (Vientiane, LAO PDR, 5 – 6 November 2008)
93 Memorandum of Understanding on Cooperation against Trafficking in Persons in the Greater Mekong Sub-
Region (Yangon, 29 October 2004) Viewable at: <http://www.notrafficking.
org/reports_docs/commit/commit_eng_mou.pdf> accessed 2 August 2014 (COMMIT MOU)
94 Memorandum of Understanding Between the Government of the Kingdom of Thailand and the Government
of the Lao People's Democratic Republic on Cooperation to Combat Trafficking in Persons, Especially
Women and Children (Bangkok, 13 July 2005) Viewable at: <http://www.notrafficking.
org/content/pdf/thailao_mou_on_cooperation_to_combat_human_trafficking_eng.pdf> accessed
09 June 2014, Memorandum of Understanding Between the Government of the Kingdom of Thailand and the
Government of the Union of Myanmar on Cooperation To Combat Trafficking in Persons, Especially Women
and Children (Naw Pyi Taw, 24 April 2009) Viewable at: <http://www.notrafficking.
org/content/pdf/thai_my_mou_coop_traf_eng.pdf> accessed 09 June 2014, Memorandum of
Understanding Between the Government of the Kingdom of Thailand and the Government of the Kingdom
of Cambodia on Bilateral Cooperation for Eliminating Trafficking in Children and Women and Assisting
Victims of Trafficking (Siem Reap, 31 May 2003) Viewable at: <http://www.notrafficking.
org/resources_laws_thailand.html> accessed 09 June 2014, Agreement Between the Government
of the Kingdom of Thailand and the Government of the Socialist Republic of Vietnam on Bilateral
Cooperation for Eliminating Trafficking in Persons, Especially Women and Children and Assisting Victims
of Trafficking (24 March 2008) Viewable at: <http://www.notrafficking.
org/reports_docs/ThaiVietnam_Agreement%20on_Cooperation_to
%20Eliminate_Trafficking_in_Persons_English.pdf> accessed 09 June 2014
95 Constitution of the Kingdom of Thailand, B.E. 2550 (2007) (Thai Constitution)
<http://thailaws.com/law/t_laws/claw0002a.pdf> accessed 31 July 2014
96 Child Act (n33)
97 Thailand Immigration Act, B.E. 2522 (1979) (Immigration Act)
<http://www.immigration.go.th/nov2004/en/doc/Immigration_Act.pdf> accessed 09 June 2014
98 Criminal Code (n36)
99 The Anti-Trafficking Act (n52)
100 Thailand Prevention and Suppression of Prostitution Act, B.E. 2539 (1996) (Prostitution Act)
<http://thailaws.com/law/t_laws/tlaw0200.pdf> accessed 1 August 2014 Section 11
101 MOU on Common Operational Guidelines for Government Agencies Engaged in Addressing Trafficking in
Children and Women (24 March 2003) Available at: <http://www.notrafficking.
org/resources_laws_thailand.html> accessed 09 June 2014 (Gov MOU), MOU on Operations
Between State Agencies and Non-Governmental Organizations Engaged in Addressing Trafficking in
Children and Women (24 March 2003) Available at: <http://www.notrafficking.
org/resources_laws_thailand.html> accessed 09 June 2014 (Gov-NGO MOU), Memorandum of
Understanding on Operational Procedures for Concerned Agencies in Combating Human Trafficking in 8
Eastern Provinces (29 May 2006) Viewable at: <http://www.notrafficking.
org/content/Laws_Agreement/laws_agreement_pdf/mou%208%20eastern%20provinces
%20(eng.)%20-%20pages%201%20-%2029.pdf> accessed 09 June 2014, Memorandum of Understanding
on Operational Procedures for Concerned Agencies in Combating Human Trafficking in 19 Northeastern
Provinces (3 July 2006) Viewable at: <http://www.notrafficking.
org/content/Laws_Agreement/laws_agreement_pdf/mou%2019%20north%20eastern
%20provinces%20(eng.).pdf> accessed 09 June 2014, Memorandum of Understanding on Operational
Procedures for Concerned Agencies in Human Trafficking in 6 Southwestern Provinces (10 January 2007)
Available at: <http://www.no-trafficking.org/resources_laws_thailand.html> accessed 09 June 2014,
Memorandum of Understanding on Operational Procedures for Concerned Agencies in Prevention,
Suppression and Solution for Human Trafficking Problems in 8 Southeastern Provinces (23 March 2007)
Available at: <http://www.no-trafficking.org/resources_laws_thailand.html> accessed 09 June 2014,
Memorandum of Understanding on Operational Procedures for Concerned Agencies in Prevention,
Suppression and Solution for Human Trafficking Problem in 17 Northern Provinces (May 2007) Available at:
<http://www.no-trafficking.org/resources_laws_thailand.html> accessed 09 June 2014, Memorandum of
Understanding on Operational Procedures for Concerned Agencies in Prevention, Suppression and Solution
for Human Trafficking Problem in 9 Central Lower Provinces (May 2008) Viewable at: <http://www.notrafficking.
org/reports_docs/legal/thailand/mou_lowerprov.pdf> accessed 09 June 2014



 

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