Monitoring the Implementation of Human Rights with International Mechanisms in Thailand: Human Rights Situations

1. Background: The Status of Thailand regarding International Human Rights Treaties

In accordance with data stating on OHCHR website, Thailand has already ratified a lot of core international human rights treaties in the United Nations system: International Covenant on Civil and Political Rights (ICCPR); International Covenant on Economic, Social and Cutural Rights (ICESCR); Convention of the Elimination of All Forms of Racial Discrimination (CERD); Convention of the Elimination of All Forms of Discrimination againts Women (CEDAW); Convention on the Righs of the Child (CRC) and Convention againts Torture (CAT).

 

The very first treaty ratified by the Thai state in 1985 is the CEDAW. The main goal of this mechanism is to guarantee that men and women are treated equally by the state. The state is obliges to submit regular reports – initially one year after ratifying and then every four years –  to the Committee on how the rights of the Convention are implemented. Thailand was supposed to submit already six reports in 1986; 1990; 1994; 1998; 2002 and 2006, but in fact it has submitted only five.

 

In 1992, after seven years of ratifying the first treaty, Thailand has formally accepted another Convention to be in force: CRC. Its objective is to protect all of children in the state without any reason of discrimintaion. Basically, the State parties have to hand an initial report two years after acceding to the Convention and a periodind report in every five years. It means that the number of all reports on CRC submitted by the Thai state should have been three sending in 1994; 1999 and 2004, but only two reports have been submitted for now.

 

The ICCPR is a very big important treaty of those mechanisms consisting in the United Nation system. It is one of the so-called International Bill of Human Rights. It subcribes every fundamenatl norms of human rights, especially on civil and politival rights, that everyone should respect and protect. Thailand has ratified the treaty in 1996 and in principles; it was supposed to hand already three reports in 1998; 2002 and 2006, but in fact it has just submitted an initial report in 2003 and in these few years it is along the process of writing a second periodic report.

 

One of the International Bill of Human Rights, ratified by the Thai state in 1999, is the ICESCR. It focuses to monitor how the economic, social and cutural rights are implemented in such State parties. A monitoring function on ICESCR is a reporting system which those State parties are obliged to submit an initial report within two years after accepting to the Covenant and then every five years. According to the procedure, Thailand shoud have been sent reports in 2001 and 2006, but it never sends any until now, in fact.

 

In 2003, Thailand has just accepted the CERD. It is mainly about rights of every people within the state without considering races, especially those ethnic minorities. In accordence with the procedure, the State parties must report initially one year after acceding to the Convention and every two years after that. Thailand, after ratifying the treaty, never submits any reports yet. Right now it is in the process of writing although three reports, in fact, should have been sent in 2004; 2006 and 2008.

 

Last year (2007), the Thai state has just decided to ratify CAT. The Convention aims to prevent torture and other cruel, inhuman or degrading treatment or punishment in the State parties. One of the duties of the parties is to report initially one year after acceding to the Convention and then every four years. It means that in this year (2008), Thailand has to submit the initial report to the Committee.

 

2. The Wrong Human Rights Indicator: Ratification of Legal Instruments VS Human Rights Protection in Thailand

As above, the Thai state can be one of those examples showing that the number of ratifications of international legal instruments is not such a good indication of the protection of human rights in reality. Even though Thai state has already ratified almost all core international human rights treaties in the United Nations system, the progress of human rights protection in the State does not increase following the number of the ratifications. Through those monitoring fuctions as saying above, especially from state and shadow reports, factual information is clearly shown that practices of governmental organs do not go along with principles stating in international or even domestic laws at all.

 

Even though it can show an effort and also can be a great start pointing out that Thailand is paying more and more attention to human rights situations, it will end up with nothing without implementation of such international laws. The Thai state needs to accept in reality that it is not yet ready to follow all of such instruments. It does not mean that Thailand should have not ratified those treaties, but the real matter is about what the next step is after acceding to such mechanisms.

 

These international mechanisms have ‘legal binding’ to the State parties. Therefore, the very first and basic duty the State parties should do is to apply those international laws into domestic ones. No such domestic laws and policies in the State parties are against ratified international human rights laws. However, it is obviously found that Thailand does not yet reach the legal requirement of those ratified international standards.

 

Since 2006 the Emergency Decree on Government Administration in States of Emergency, B.E. 2548 has been come into effect in three southern provinces. It does not explicitly specify, or place sufficient limits, on the derogation from the rights protected by one of the main treaties – the ICCPR – that may be made in emergencies and does not guarantee full implementation of article 4[1] of the Covenant. The Decree seems to provide for governmental officials the state of emergency to be relieved of legal and disciplinary actions, then increasing the problem of impunity. Moreover, detention without external safeguards beyond 48 hours which is prohibited in the Covenant can be done regarding this Decree.

 

Therefore, it is obviuosly shown that such a law limits freedom and also violates basic rights of the people in the area. After being in force, the Decree has been criticizing a lot both in national and international levels. The Human Rights Committee is also concerned about this issue, according to concluding observations towards the ICCPR initial report of Thailand submitted in 2004[2]. However, the Decree is used until now.

 

Futhermore, there are some policies, especially in the local level, violating the rights of people: a provincial order in 2007[3] of Phuket; Phang-Nga; Ranong and Rayong on Rules for Registered Migrant Workers from Burma, Laos and Cambodia. In the order, it states that firstly, after 8 pm. such workers are prohibited to come out of the place they stay. Secondly, the workers are prohibited to drive a car or even a motorcycle and also the owners are prohibited to allow the workers driving such vehicles. Thirdly, an employer of the workers has to make a list of the workers together with their mobile phone number handing to the Province if it is necessary for the workers to use a mobile phone. Fourthly, the workers more than five people are prohibited to assemble outside the place they stay, but in the case of necessity, the employer has to recognize by writing an oficial letter with a detial of the workers and activity and sending to the Province. Lastly, the workers can travel out of the Province for only three reasons: being a witness in the court; being refered to another hospital in a case of illness; and being allowed to change the area of working by the Provincial of Employment Ofice

 

According to the order, basic human rights of the migrant workers – right to health (article 12[4] of the ICESCR), right to education (article 13[5] of the ICESCR), or even right of minority (article 27[6] of ICCPR) – are a lot limited and violated. The order can cause excessive use of force by governmental officials in order to arrest those workers because of such prohibitions. Finally, it can open a chance for the officials to exploit those workers and for a great corruption as well.

 

Although there are some aforsaid laws and policies conflicting with the international meachanisms, in general, most of domestic laws and policies in the Thai state are quite compatible with those international ones. However, the greater difficuty is to monitor whether those rights under the treaties are implemented effectively by the State. The problems always occur in this step of implementation.

 

Mostly, Thai governmental officials are still working in the old classic style and getting used to a top-down strategy. In principles, national laws and policies affect every single person in the State, but in fact an order from people in authority seems to be more important than anything. Sometimes, even though laws have already come into effect, the officials do not feel comfortable to follow unless their chief has order to do so.

 

In article 24[7] of the ICCPR, it is saying about the right of the child to birth registration and also in section 20 of the Civil Registration Act, B.E. 2551, the same issue is stated. Nevertheless, it is found in reality that frequently district officials deny to issue a birth certificate to children born in Thailand of people wihtout Thai nationality. In accordance with the information from one of the ICCPR state reporters of Thailand[8], a district official in Chiangmai at first denied to issue a birth certificate to a child born in Thailand of migrants from Burma holding an identification card issued by the Thai state because he understood that the birth certificate could not be issued for people without Thai nationality.

 

Moreover, it takes quite some times for such laws and policies to come into effect in practice if there is no such direct order from the authority. In last February 2008, the Nationality Act, B.E. 2551 has just been in force. Section 23 of the Act allows people having such qualification stating in the provision to apply for Thai nationality at the district they have a domicile. The same problem which those people found is that district officials did not accept their application because the official letter from the central authority – the Department of Provincial Administration – does not yet arrive although they, themselves, know that the Act has come into effect already and the duty of the district official is clearly stated in the provision.

 

The biggest problem found in Thailand is ignorance of officials. Only few officials have knowledge about such international treaties. Firstly, they do not know that Thailand has ratified such mechanisms and they have already been in force in the Thai state. Secondly, they do not know about the contents of the treaties. And lastly, they do not understand why Thailand has to obey such international legal instruments.

 

For all of these informations about the situations of human rights in Thailand, it clearly shows that the number of ratification of such international treaties can not be counted as the indicator of the progess of human rights protection. They almost mean nothing if they can not be applied into the implementation in the real world. Even though almost all of core international instruments have been ratified by the Thai state, it does not help if Thailand still dose not improve and adapt itself in order to follow such treaties.

 

3. Human Rights Organs in Thailand: Are, in Fact, They on or off Duty?

 

a.      National Human Rights Institution

           

In 2001, the Thai state has established ‘the National Human Rights Commission’under the National Human Rights Commission Act, B.E. 2542 (1999) as a mechanism to promote respect for human rights. According to section 15 of the Act, the Commission has the powers and duties as follows:

(1)         to promote the respect for and the practice in compliance with human rights principles at domestice and international levels;

(2)         to examine and report the commission or omission of acts which violates human rights or which do not comply with obligations under international treaties relating to human rights to which Thailand is a party, and propose appropriate remedial measures to the person or agency committing or omitting such acts for taking action. In the case where tit appears that no action has been taken as proposed, the Commission shall report to the National Assembly for futher proceeding;

(3)         to propose to the National Assembly and the Council of Ministers policies and recommendations with regard to the revision of laws, rules or regulations for the purpose of promoting and protecting human rights;

(4)         to promote education, researches and the dissemination of knowledge on human rights;

(5)         to promote co-operation and co-ordination among Government agencies, private organizations, and other organizations in the field of human rights;

(6)         to prepare an annual report for the appraisal of situtaion in the sphere of human rights in the country and submit it to the National Assembly and the Council of Ministers and disclosed to the public;

(7)         to assess and prepare an annual report of the performance of the Commission and submit it to the National Assembly;

(8)         to propose opinions to the Council of Ministers and the National Assembly in the case of where Thailand is to be a party to a treaty concerning the promotion and protection of human rights;

(9)         to apoint a sub-committee to perform the tasks as entrusted by the Commission;

(10)     to perform other acts under the provisions of this Act or as the law prescribed to be the powers and duties of the Commission.

However, the NHRC has yet to develop the capacity to address the human rights situation in Thailand. The Thai government's criticism and unwillingness to grant the NHRC the independence that the Paris Principles deem imperative has raised serious questions about the body's efficacy and credibility. In the first few years of its existence, though beset by governmental attempts to cripple its effectiveness, the NHRC has shown signs of independence from the government by issuing statements critical of government policies.

 

In 2002, the NHRC adopted a strong stand on the violent clashes between police officers and protestors against the Thai Malaysian Gas Pipeline Project in Hat Yai, Sangkhla province on 20 December 2002. In 2003, the NHRC expressed concern over the killings of more than 1,000 suspected drug dealers as part of a three-month 'war on drugs' launched by Prime Minister Thaksin Shinawatra in February 2003.

Although Section 15 of the National Human Rights Commission Act empowers the NHRC "to examine the commission or omission of acts which violate human rights or which do not comply with obligations under international treatment to which Thailand is a party, and propose appropriate remedial measures to the person or agency committing or omitting such acts for action," the Commission has met with strong resistance. As a good sample, Commissioner Dr. Pradit Chareonthaitawee expressing concern at a UN conference in Pakistan in March 2003 about the continuing drug war, the extrajudicial killings of drug suspects and the failure of the police to bring the suspects to courts has been accused of "helping" the drug dealers and received anonymous death threats over the phone, in an attempt to prevent him from "communicating with the UN”. Such threats have made the jobs of independent agencies impossible to perform.

 

The most crucial problem facing the NHRC is a lack of adequate resources. Even the Human Rights Committee is concerned about this issue. As written in concluding observations towards the ICCPR initial report of Thailand submitted in 2004[9], “the State party should ensure that the Commission is endowed with sufficient resources to enable it effectively to discharge all of its mandated activities and in accordance with the Principles realting to the status of national institutions for the promotion and protection of human rights (the Paris Principles) (General Assembly Resolution 48/134).

 

Further, the NHRC does not have the authority to pass judgment or impose penalties on anybody. The NHRC also has no power to compel persons and institutions to take action, for although it can report its findings and make suggestions on the issue, its only recourse if they fail to comply is to report to Parliament and leave it to the public to exert pressure.

 

Despite these problems, the Commission's willingness to confront the government indicates that the NHRC is taking its role seriously. If the NHRC can secure the co-operation and resources it needs to independently and thoroughly conduct investigations, it may prove to be a positive force for human rights in Thailand.

 

b.      Civil Society

In Thailand, civil society such as NGOs, media, or even community also plays an important role to protect human rights within the State. They sometimes have a lot influence on state practice and also their actions affect realization of people on human rights situations.

In many places where risks of human rights violation are realized, people in the community will gather firmly in order to help each others more effectively and also to gain more power of negotiation with the local governmental units regarding their rights. In Mae Ai district, Chiangmai, ‘the Legal Assistance Center on Legal Status and Rights’ was set up last year by the local people who used to face the stateless problem with knowledge support of legal scholars from Payab University, Thammsat University, Naraesuan University and Chinagmai University; with technical support from NGOs such as Mirror Foundation and Hill Area Development Foundation; and with financial support from International Organizations such as UNICEF Thailand and Plan International Organization. The main objective of the Center is to help a number of Mae Ai people whose Thai nationality was once revoked by illegal administrative act of the district in 2003. Even though the Supreme Administrative Court has a decision already that those people have to be reinstated into the civil registration as Thai nationals, in fact some can not. Moreover, some who have already been reinstated can not exercise their rights in practice. Therefore, the Center was established as a connector between local people facing the problems on legal status and rights and local governmental officials.

The Center, itself, seems to be such a one-stop service center for helping Mae Ai people on the issues. It does not only give legal assistance to such people, but also give legal consultation to other cases having the same problems. And with assistance from the Center, a mobile school on legal status and rights has been set up in the community. As the result, people in the community have more knowledge in order to solve the problems by themselves and also to help other people in the community who face the same situtaions. Moreover, to have the Mae Ai Legal Assistance Center is to stimulate the whole society to more and more realize and understand the problems of such people. Unintentionally, it has taught the Thai society about the factual situations, legal situations and solutions for such people and also others facing the same situations. Therefore, it becomes a good model of solution with participation of community itself.

Besides the community in Thailand, media also takes a big part in these human rights matters. With merit, media should play a role as an independent organ to present real facts to the society for making situations, especially in conflict, clearer. In this part, more or less, media can help to make better situations. For example, in the southern provinces where conflict and violence take place and increase more and more everyday, real facts and informations are very cruel and affect realization of the society. Furthermore, attitude and belief of people both in and outside the areas can be changed depending on such presented facts and information by media. Therefore, in 2006 ‘Deep South Watch[10]’ was established in order to be as a resources center for everyone to study real situtaions in the south. Deep South Watch is an independent media and academic organization, including the cooperation from media such as ISRA institute, Thai Journalist Association and Journalist Association in the South, and Public Dissemination for Social Awareness Foundation; from scholars such as Political Science Faculty and Communication Science Faculty of Prince of Songkla University and representatives from schools in the three provinces; and from Rural Doctor Society. Such an organization has developed to be more than media, but it creates a learning process about the situations in the south for every single person and it unintentionally sets up a public mechanism in order to monitor the situations as well.

 

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[1] Article 4 of the ICCPR:

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

[2] The Human Rights Committee, “Consideration of Reports submitted by State Parties under Article 40 of the Covenant”, Concluding Observations of the Human Rights Committee, Thailand, paragraph 13, 28 July 2005

[3] Also see: http://www.oknation.net/blog/print.php?id=181391 (in Thai)

[4] Article 12 of the ICESCR:

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a)     The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b)     The improvement of all aspects of environmental and industrial hygiene;

(c)     The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d)     The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

[5] Article 13 of the ICESCR:

1.        The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

2.        The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:

(a)     Primary education shall be compulsory and available free to all;

(b)     Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;

(c)     Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;

(d)     Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;

(e)     The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.

3.        The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

4.        No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

[6] Article 27 of the ICCPR:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

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