Thailand Law Journal 2014 Spring Issue 1 Volume 17

D METHODOLOGY

The key questions to investigate are: What rights do asylum seeking, refugee and stateless children have in Thailand under international, regional and bi-lateral law? What domestic laws are in place to meet their international, regional and bi-lateral obligations? What do those who have worked with or lived with the target populations feel about their rights and protection? What changes in law or implementation could be made in order for Thailand to meet its obligations?

The second and third chapter will comprise a documentary analysis of the law. The second chapter will describe relevant international, regional and bi-lateral law by examining the original documents applicable to Thailand, focusing on the provisions directly relevant to the target populations, their rights and protection. International mechanisms will be examined to establish the monitoring and evaluation that Thailand are subjected to regarding the treaties to which they are a member. Finally secondary sources will be explored. This chapter will establish the rights and protection afforded to the target populations under international, regional and bi-lateral law.

The third chapter will analyse the domestic law relevant to the rights and protection covered in the second chapter. This will be done by analysing English translations of the original documents, focusing on the provisions presented in chapter two. Any pertinent case law will be explored. Finally any relevant secondary sources will be presented. This chapter will establish the extent to which domestic law in Thailand is meeting its international, regional and bi-lateral obligations.

The fourth chapter will primarily comprise empirical research. Four interviews with Burmese refugees living in Malaysia, who passed through or lived in Thailand, conducted in person by this author prior to beginning this study shall contribute. Three interviews with experts in the field, conducted for the purpose of this study will be of primary consideration. These interviews were conducted via Skype or email. They will be presented in a positivist manner as they seek to provide an accurate report of experiences and feelings of those working with the communities.102 During the interviews direct research questions were not asked and the interviews were conducted in a more informal pattern, allowing the interviewee to set the pace and minimize the degree to which their answers were affected or influenced by the questions.103 Questions asked to the interviewees included inter alia: Do you believe that asylum seeking, refugee and stateless children are treated equally as other children in Thailand? What assistance or help has the Thai government provided for these children? And: If you could change the law in Thailand, what would you change?Secondary sources will be used to supplement, support or challenge claims from the collated interviews.

The final chapter will summarise the findings, conclusively answer the questions of this study and present recommendations, if needed, with the aim of allowing Thailand to better meet its international, regional and bi-lateral obligations. An analysis of the adequacy of the data, methods employed and concepts used in this study will also be presented.

The following chapter will describe the relevant international, regional and bi-lateral law.

2) INTERNATIONAL, REGIONAL AND BI-LATERAL LAW

This section will establish the rights of the target populations, as well as the protection from trafficking under international, regional and bi-lateral law. Family rights and parental rights will not be explored in this study, neither will group rights or rights of association. Rights directly of the child, applicable to all children of the target populations that are the sole responsibility of the Thai government, will be explored.

This section will look at three different kinds of rights: Absolute rights, those which allow for no exceptions,104 qualified rights, rights which are subject to limitations or qualifications105 and derogable rights, rights that allow for a "lessening or restriction of the authority, strength, or power of a law, right or obligation"106 in times of public emergency.107

With regard to protection from trafficking this study will focus on provisions directly concerning the children. Provisions regarding training of officials, national plans and dissemination of materials or awareness raising will not be covered.108 Provisions concerning cooperation between States, repatriation and reintegration of trafficking victims will not be covered as this study will examine provisions that are the sole responsibility of the Thai Government, including preventative measures, protection and judicial proceedings.109

A INTERNATIONAL LAW

1 ICCPR and ICESCR

Rights within the ICCPR pertinent to the target populations: Absolute rights include inter alia the right to life (this is not an absolute right for adults, but pursuant to Article 6(5)110 it becomes an absolute right when applied to children), freedom from torture,111 freedom from slavery,112 recognition before the law,113 freedom of thought, conscience and religion.114

Derogable rights include inter alia freedom from arbitrary arrest,115 juvenile accused to be separated from adults,116 judicial rights,117 right to privacy,118 right to be registered after birth and acquire a nationality,119 right to equal protection of the law120 and the freedom of expression.121

Non-derogable, qualified rights, rights which may not be derogated from but are subject to limitations or qualifications include inter alia right to manifest one's religious beliefs122 and freedom from forced labour.123 All of the rights in the ICCPR mentioned above apply equally to both nationals and non-nationals, as confirmed by the HRC.124

The implementation of the ICCPR is monitored by the HRC via periodic reports.125 Thailand's first report was due in 1998, but submitted in 2004.126 The HRC expressed concern regarding inter alia Articles 2,127 7,128 8,129 10,130 and 24131 concerning asylum seekers, refugees, stateless people and children's rights.132 Thailand did not respond to the HRC's concerns, as other nations have done.133 Thailand's second report was due on 1 August 2009 but has not been submitted.134

Concerning Derogations: On 16 July 2005 a state of emergency was declared in Thailand. The HRC expressed concern as no specific limits were placed upon derogations and thus did not fully comply with Article 4 of the Covenant.135

Regarding the ICESCR, absolute rights pertinent to the target populations include inter alia: right to social security136 and the right to be protected from economic and social exploitation.137 Qualified rights include inter alia right to an adequate standard of living138 and right to an education139 (Article 14 obliges States to achieve free primary education for all within a reasonable number years but there is no set time limit.)140

The Committee on Economic, Social and Cultural Rights (CESCR) monitors the implementation of the ICESCR via periodic State reports.141 Thailand's first report was due in June 2002 but submitted in August 2012.142 The CESCR is yet to respond to the report.143