Thailand Law Journal 2014 Spring Issue 1 Volume 17

2 Child Labour Convention

This Convention concerns inter alia the prevention of, criminalisation of, and rehabilitation for victims of child slavery, trafficking, prostitution and work that is likely to harm the health, safety or morals of a child.144 The ILO's primary means of monitoring implementation is via annual reports submitted by State parties.145 The ILO has received two reports from
Thailand, one of which was deemed detailed. No reports have been received since 2007 and numerous direct requests concerning a lack of Thai legislation protecting children from hazardous work has resulted in no response from Thailand.146

3 Convention on the Rights of the Child and Optional Protocols

Thailand holds a reservation to the CRC regarding Article 22147 which concerns the rights of asylum seeking and refugee children. Thailand has stated that the application of Article 22 "shall be subject to the national laws, regulations and prevailing practices in Thailand."148 Under the Vienna Convention a reservation is a unilateral statement purporting to exclude or modify the legal effect of a provision's application to that State.149 According to the International Court of Justice's Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide a State may formulate a reservation so long as it is compatible with the object and purpose of the treaty.150 A reservation regarding Article 22 is arguably not compatible with the object and purpose of the treaty but the reality remains that Thailand continues to be a member of the Convention on its own terms.151

There is no such reservation concerning Article 7 which requires a child to be registered immediately after birth, particularly if the child would otherwise be stateless. Article 7 also however requires for this to be implemented in accordance with national laws and other international obligations,152 thus the CRC itself provides no means or specific target for a State to implement this provision.

Although these are the only provisions expressly concerning asylum seeking, refugee and stateless children in the CRC the Committee on the Rights of the Child (CRC Committee) have asserted that:

"the enjoyment of rights stipulated in the Convention is not limited to children who are citizens of a State party and must therefore, if not explicitly stated otherwise in the Convention, also be available to all children - including asylum-seeking, refugee and migrant children - irrespective of their nationality, immigration status or statelessness."153

Thus all the articles, to which Thailand does not hold a reservation in the CRC extend to asylum seeking, refugee and stateless children under Thailand's jurisdiction. The absolute rights include inter alia the right to life,154 right to be registered after birth and acquire a nationality,155 freedom of thought, conscience and religion,156 right to privacy,157 right to highest attainable standard of health care,158 right to social security,159 right to be protected from economic and sexual exploitation,160 freedom from torture, capital punishment, life imprisonment and arbitrary arrest,161 and judicial rights.162

Qualified rights in the CRC include inter alia to express opinions in judicial matters concerning the child,163 freedom of expression,164 right to education (to be achieved progressively)165 and freedom to manifest one's religion.166

Articles 34 and 35 place the obligation upon States to protect children from sexual exploitation, sexual abuse, abduction and the sale of or trafficking in children for any purpose.167

The First Optional Protocol concerns the involvement of children in armed conflict, asserting that no one aged under 18 years shall be compulsorily recruited into the armed forces or involved in hostilities. Those aged 15 years and above may be voluntarily recruited, with safeguards in place.168 The Second Optional Protocol concerns inter alia prevention of and
protection for victims of the sale of children, child prostitution and child pornography.169 This includes inter alia educating children about trafficking,170 informing of rights,171 access to seek compensation172 as well as allowing views, needs and concerns of the child to be presented and considered in proceedings.173 Other provisions are qualified when 'appropriate'
including inter alia; protecting the privacy and identity of the child and providing for the safety of child victims.174 The Third Optional Protocol allows for individual complaints to be submitted to the CRC Committee,175 this Protocol came into force on the 14th April 2014.176

The CRC Committee monitors the implementation of the CRC and three Protocols by reviewing State's reports, to be submitted two years after acceding and, for the CRC only, every five years thereafter.177 Thailand submitted its first report on the CRC in 1996, four years after acceding, their second report was five years late and their third report was two years late. Thailand's next report is due in 2017.178 Concluding observations made by the CRC Committee in 2012 welcomed Thailand's dialogue and willingness to respond to the CRC Committee's concerns as well as welcoming numerous legislation protecting children in Thailand.179

Regarding the first and second Protocol's Thailand's initial reports were due in 2008 and were submitted in 2009, no other reports have been requested.180

4 Trafficking Protocol

The Trafficking Protocol protects victims of trafficking by obliging States to inter alia protect the privacy and identity of trafficking victims,181 provide assistance to enable victims' views to be presented and considered at appropriate stages of proceedings,182 offer victims the possibility of obtaining compensation183 and consider permitting victims to remain in its
territory temporarily or permanently.184 The term 'consider' can be interpreted merely as; "to think seriously about something"185 meaning that States may be under no obligation to implement legislation enacting the provision.

The Trafficking Protocol also asserts that States shall endeavour to provide for the physical safety of victims.186 Endeavour, lacking a clear legal definition, means to "try hard to do or achieve something", again this could be interpreted to mean there is no obligation upon States to implement.187

The Conference of the Parties to the UN Convention Against Transnational Organized Crime and Protocols Thereto promotes and reviews implementation.188 In 2008, the Working Group to the Trafficking Protocol was established, tasked with inter alia making recommendations to the Conference on how State parties could better implement provisions.189 Thus far the
Conference has not addressed Thailand's implementation of the Trafficking Protocol, as the last session was prior to Thailand acceding.190 The next session for the Conference is due in October 2014.191

Treaties are written agreements whereby participating States legally bind themselves to act in a particular way. Thailand is bound to the above treaties via the customary principle of pacta sunt servanda,192 yet there is no form of enforcement. Oona Hathaway's study regarding human rights treaties found that States rarely complied with treaty laws and countries violating human rights provisions were sometimes more likely to have ratified the relevant treaty.193 It is worth noting Thailand's submission of late reports to monitoring bodies, or lack of submissions to monitoring bodies.