Thailand Law Journal 2014 Spring Issue 1 Volume 17

(d) Right to be registered after birth and acquire a nationality

Right to be registered after birth and acquire a nationality is a derogable right under the ICCPR and a right to be implemented in accordance with national law under the CRC.335 Right to a nationality is also recognised under the soft law of the AHRD.336 The Civil Registration Act (no. 2) B.E. 2551 (2008) included the registering of births of those without Thai-Nationality.337 The right to registration has not resulted in granting of nationality however. An individual born in Thailand cannot obtain nationality if their mother or father is deemed to have entered and resided in Thailand without permission under the law on immigration.338 Furthermore those born in Thailand who do not qualify for Thai nationality shall be deemed to have entered and resided in Thailand without permission under the law on immigration.339

(e) Freedom of expression

Freedom of expression is a derogable right under the ICCPR, a qualified right under the CRC and an absolute right under the soft law of the AHRD.340 This includes the right to seek, receive and impart information,341 with the CRC and ICCPR allowing for such restrictions required by law and are necessary.342 Under the Thai Constitution an individual has the right
to express their opinion via speech, writing, print and other means. This right can be restricted under law for the purpose of maintaining the security of the State, protecting the rights, liberties, dignity, reputation, family or privacy rights of another person, maintaining public order or good morals or preventing or halting the deterioration of the mind or health of the public.343 Those living in refugee camps have reportedly been detained for expressing their opinions.344

The CRC further calls for States to encourage the mass media to disseminate information of social and cultural benefit to the child.345 Restrictions placed on the media, including arrest,346 threats and harassment of journalists, drawing concern from the HRC,347 are in violation of this provision.

(f) Freedom from forced labour

Involving children in forced or compulsory labour is prohibited under the ILO's Child Labour Convention.348 Freedom from forced labour is a provision under the ICCPR,349 guaranteed unless performed as legal punishment for a crime, military service or service exacted in cases of emergency or calamity threatening the life or well-being of the community.350 Under the Thai Constitution forced labour may be enacted for the purpose of averting imminent public calamity or during the time of war, armed conflict, state of emergency or martial law.351 There is no law setting an age limit for those who may be subjected to forced labour.

Those living inside the refugee camps have reported being made to perform forced labour by the Thai authorities. These reports however contain no specific mention of child forced labour.352

3 Derogable Rights

This sub-section will only concern rights not covered elsewhere, as derogations do not allow for derogation from other international obligations.353 Thus rights contained in both the ICCPR and other human rights treaties may not be derogated from. Only rights explicitly mentioned in the ICCPR as derogable and not guaranteed elsewhere are covered here.

(a) Separation of juvenile accused from adults

The ICCPR asserts that juvenile accused must be separated from adults.354 Although no age limit is firmly set on the definition of juvenile the HRC suggest that all persons under 18 years of age be considered as juvenile.355 Under Thai law an individual not yet over fourteen years of age shall not be punished by detention or imprisonment.356 The Juvenile and Family Court and Juvenile and Family Procedures Act of 2010 guarantees that a child below eighteen years is to be detained separately from adults.357 The CRC Committee have expressed concern that in some cases children can be detained with adults however.358
Furthermore detainees at immigration detention centres have reported children and adults being held together.359

(b) Equal protection of the law

The second derogable right is that of equal protection of the law, under the ICCPR. The law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination.360 This is reiterated in the AHRD.361 Discrimination can be taken to occur where there is a difference in treatment of persons in analogous, or relatively similar,
situations which is based on an identifiable characteristic.362 Equal protection under the law and the non-permitting of discrimination are guaranteed under the Thai Constitution.363 It may be concluded, as explored above, that the law in Thailand treats the target populations differently from citizens in analogous situations. Grounds upon which discrimination may occur however do not include immigration status.364

B PROTECTION

The CRC obliges States to take appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.365 The AHRD also asserts that no person shall be subject to trafficking in persons.366

International, regional and bi-lateral law specifically addressing trafficking of children consists of the Trafficking Protocol, the Second Optional Protocol to the CRC, the COMMIT MOU and Bi-lateral MOU's and agreements.

1 Preventative Measures

(a) Access to education and skill training, and increasing economic opportunities and medical care

The COMMIT MOU, the Agreement with Vietnam and MOU's with Lao PDR, Cambodia and Burma assert that States shall ensure or provide access to education and vocational training as well as supporting poverty reduction programs, increasing economic opportunities and increase in medical care.367 The Trafficking Protocol asserts that States shall raise awareness, including via educating children, of the preventative measures and harmful effects of trafficking.368 As previously explored asylum seeking, refugee and stateless children are only allowed to attend School in the designated refugee camps.369 The Ministry of Education in Thailand is providing programmes such as the Sema Life Development project which identifies girls vulnerable to trafficking or prostitution, offers educational and other alternatives and awards scholarships to high-risk groups so that they may attend school.370 This programme works with schools and thus may be closed to anyone not allowed to attend school. The Thai Women of Tomorrow Project is another programme aimed to help young girls identified as vulnerable to gain skills, find employment and avoid the sex industry.371 Even with training and education, it is illegal for those deemed to have entered Thailand illegally to gain employment.372 Thus the economic opportunities remain bleak for the target populations, some find that sex work is one of the few options available to them.373