Hague Conference on Private International Law

On 3 March 2021, Thailand deposited the Instrument of Acceptance to the Government of the Netherlands, making Thailand the 88th member of the Hague Conference on Private International Law (HCCH). As a member of HCCH, Thailand will be able to participate in the development of rules of private international law that facilitate and govern cross-border activities in the areas which correspond well with Thailand’s interests.

The Hague Conference is an intergovernmental organization with global reach, established in 1893, to develop and refine the rules of private international law and to provide a comprehensive framework that facilitates cross-border cooperation in civil and commercial matters. The HCCH accomplishes this mandate by formulating and implementing multilateral legal instruments that cater to the diverse and evolving global needs of our time. These instruments are designed to address intricate and complex cross-border issues such as the adoption and abduction of children, the abolition of the legalization requirement for foreign public documents, and the recognition and enforcement of foreign judgments in civil and commercial matters.

The HCCH conventions play a critical role in ensuring the protection of individual rights and enhancing the capabilities of businesses while promoting a legal system that is well-suited to meet the demands of the ever-increasing frequency of cross-border personal and economic activities. These conventions have proven to be indispensable tools in the development of an international legal system that is effective, efficient, and sensitive to the diverse legal traditions that exist around the world. As a result, the Hague Conference remains an essential forum for the promotion and harmonization of private international law and for the resolution of complex legal issues that arise in cross-border situations.

Kitti Jayangakula

Preparedness and Response to Oil Spill/Oil Pollution Incident

Oil incidents occur frequently in Thailand and 2021 is another year of oil spills in the sea. An oil spill is one of the pollutants in the marine environment. Although the International Convention on the Law of the Sea 1982 (UNCLOS 1982) does not directly address the issue of oil spills in the sea, there is a chapter on the protection and preservation of the marine environment in Part XII of the Convention.

To fulfill the obligations set out in UNCLOS 1982, the International Marine Organization (IMO) has created an international convention to protect the marine environment, especially regarding pollution from ships. The international conventions that have been adopted establish a relationship between the marine environment provisions contained in the UNCLOS 1982 and the International Convention on Oil Pollution Preparedness, Response and Co-Operation 1990 (OPRC 1990).

OPRC 1990 aims to provide a global framework for combating major incidents or threats of marine pollution, which requires establishing measures for dealing with pollution incidents, either nationally or in co-operation with other countries, and a national system, for responding effectively to oil pollution incidents. The status of OPRC 1990 was adopted on 30 November 1990 and entered into force on 13 May 1995, when Thailand became a party by accession on 20 April 2000.

In this regard, the Navigation in the Thai Waters Act B.E. 2456 (1913) Section 119 prohibits pouring, dumping, or doing in any way whatsoever that allows rocks, gravel, sand, soil, mud, ballast, objects, or any waste into the sea within Thai waters, which will cause shallow sedimentation and Section 119 bis prohibit pouring, dumping or doing in any way causing oil and chemicals or anything into the sea within Thai waters that may cause toxicity to live organisms or Environmental or harmful to navigation. However, these provisions do not cover details of the prevention and pollution of the sea arising from vessels. Therefore, the Navigation in the Thai Waters Act is insufficient to support international obligations, that is, it does not meet international criteria and standards.

However, there have currently been other laws, such as the “Regulations of the Office of Prime Minister on the Prevention and Elimination of Oil-Relalted Water Pollution B.E. 2538 (1995),” which is the most current version is the 2004 edition. The law provides principles and reasons for issuing this regulation, for example, the need for a National Plan to Prevent and Eliminate Oil-Related Water Pollution that would facilitate the rapid and efficient implementation of oil spill operations to minimize the damage.

Such Regulations designate the duties and responsibilities of public and private sector organizations to coordinate and mobilize their resources to work together to respond promptly and effectively to oil pollution incidents and to reduce the impact on the environment and natural resources. These regulations comply with the requirements of the OPRC 1990.

From the above-mentioned Regulations, in 2021, a mechanism allowed Thailand to establish the Committee on Prevention and Elimination of Oil-Related Water Pollution (the Committee) (Article 6), which is responsible for setting policies and formulating a national plan for the prevention and elimination of water pollution due to oil. The Committee also controls, regulates, supervises, and is responsible for eliminating oil-related water pollution, monitoring, and evaluating the performance according to the National Oil-related Water Pollution Prevention and Elimination Plan. The plan includes establishing public relations, making press conferences, and reporting the results to the Cabinet (Article 10). Moreover, there are other agencies responsible for various matters under the Regulations, such as the coordination center (operated by the Marine Department) and the operation unit (consisting of the Marine Department, the Royal Thai Navy and the provincial authority).

In case of oil spills, the operation units must promptly implement the protection plan established by the Committee to prevent and eliminate water pollution due to oil. A survey must be conducted to check, gather and consider relevant information such as the type of oil, spill quantity, the direction and speed of the currents, the winds, the weather, and the nature of the environment in that area. The operation units must also choose a method for eliminating oil stains, including considering the level of leakage. Additionally, the operation units must assess the ability of the person in charge of the operation and the request for additional support from foreign countries. Thereafter, the progress of the implementation of the prevention plan will be reported to the Secretary of the Committee every period. Such reports will be presented to the Committee (Articles 13 and 14).

During an operation, if the operation units need help with their operations, the Coordination Center may request support from government agencies or seek cooperation and private support in the areas of expertise, manpower, premises, tools, materials, chemicals, vehicles, and other items necessary for the operation (Articles 15 and 16).

In addition, the Committee shall appoint a committee to rehabilitate and assess the damage to the environment caused by oil by preparing an action plan for rehabilitation and compensation for damage to the environment from the oil spill-affected area. When the mission is over, the Secretary of the Committee shall prepare a report analyzing the causes of pollution and elimination of such pollution for submission to the Committee (Article 14, Paragraph 2).

In the case of a large oil spill beyond the capacity of the domestic agencies, the Coordination Center shall request and obtain support from other countries in accordance with the agreement or cooperation that has been established.

The above mechanisms to deal with oil spills according to the OPRC 1990 make it possible to fulfill the obligations of UNCLOS 1982 on the substantive provisions, such as Article 199, Contingency Plan Against Pollution, and Article 211, and Pollution from vessels. Thailand has aimed to comply with international obligations, especially concerning oil pollution from ships in Thailand and has made a declaration pursuant to Article 310.

Kannaphak Tantasith

Wilasinee Maijaroensri

Abortion Law

On 19 February 2020, the Constitutional Court of Thailand issued Decision No. 4/2563, declaring the provisions of Sections 301 and 305 of the Penal Code, which govern abortion, to be unconstitutional. The Penal Code, under Section 301, imposes a maximum penalty of three years imprisonment and a fine of up to six thousand Baht, or both, on women who seek an abortion. The Constitutional Court held that this provision contravened the guarantees of equal rights for men and women enshrined in Sections 27 and 28 of the 2017 Constitution, as well as the fundamental right and liberty of all individuals to their life and person.

The Court mandated that the provision of Section 301 be invalidated within 360 days of the decision, namely no later than 13 February 2021. However, the Court found that Section 305 of the Penal Code, which permits legal abortion in cases where the pregnancy arises from offenses related to sexuality, such as rape, or endangers the mother’s physical health, did not infringe upon the 2017 Constitution. Nonetheless, the Court directed that Sections 301 and 305 be amended to reflect the present realities of the country.

The Court’s decision in this matter marks an important step towards safeguarding the rights of women in Thailand, particularly their right to reproductive autonomy. The decision also highlights the vital role of the judiciary in upholding the principles of constitutional democracy and protecting the fundamental rights of all individuals. By striking down provisions that are inconsistent with constitutional protections, the Constitutional Court has affirmed its commitment to ensuring the rule of law and promoting the advancement of human rights in Thailand.

On 6 February 2021, the Penal Code Amendment Act was promulgated. According to the new provisions of Section 301, a woman who aborts a fetus that is older than 12 weeks shall be liable to no more than six months in prison and/or a fine of one thousand Baht. Furthermore, the new provisions of Section 305 of the Penal Code provide more situations of legal pregnancy termination as following provisions:

Section 301: “A woman who aborts a foetus that is older than twelve weeks shall be liable to no more than six months in prison and/or a fine of ten thousand bath.”

Section 305: “The offender is not guilty if:

• (1) The pregnancy puts the mother at risk physically or psychologically.

• (2) The baby faces a significant risk of developing a physical or mental disorder or disability.

• (3) The woman has been impregnated due to rape.

• (4) The mother-to-be is convinced there is no other option.

• (5) The abortion of foetus that is older than 12 weeks but not exceeding 20 weeks is approved by a doctor or other health professionals as approved by the Ministry of Public Health.”

According to the Amendment Act, the aforementioned abortion law provisions came into force on 7 February 2021.

Kitti Jayangakula

Central Juvenile and Family Court, Petitioners [Constitutional Court, Decision No. 20/2564, 17 November B.E. 2021]

Facts

The Central Juvenile and Family Court submitted an Objection of both Petitioners (Puangpetch Hengkam and Permsup Sae-eung) in the Civil Black Case No. YorChorPor 1056/2563 requesting the Constitutional Court to decide under the Constitution for an order accepting registration of marriage as both Petitioners are life partners with gender and sexual orientation as female falling for female, or persons with gender diversity spending lives as partners together for over 10 years in the manner of life partners having relationship, role, duty, and responsibility for each other as legal spouses.

On 14 February 2020, both petitioners submitted an application for registration of marriage at the Bangkok Yai District Office, Bangkok. However, the Registrar of Bagkokyai District informed both Petitioners that, as they were a same-sex couple, the registration of marriage could not be granted. The Rule of the Ministry of Interior on Family Registration B.E. 2541 (A.D.1998) stipulates that registration applications shall only be between males and females by birth. Accordingly, the Registrar of Bangkokyai District refused to grant marriage registration as both Petitioners were of the same gender. The request was not complying with the Civil and Commercial Code (CCC), section 1448 which stipulates that “A marriage can take place only when the man and woman have completed their seventeenth year of age …”

The opportunity to be granted marriage registration is a basic right all Thai people deserve, the same as other spouses who are females and males by birth. Therefore, they submitted an Objection to the Central Juvenile and Family Court arguing that section 1448 of the CCC is an infringerment of their rights and liberties as prescribed by the Constitution and causes them injury. The rejection of the application breaches human dignity, rights, liberties, and equality of persons, which are equally recognized and protected under the Constitution. This is contrary to or inconsistent with the Constitution, section 4, section 5, section 25, section 26, and section 27. In particular, Section 27 of the Constitution prescribes that: persons shall be equal before the law and protected under the law equally. Men and women shall enjoy equal rights, shall not be subject to unjust discrimination on the ground of sex differences, and have the liberty to live their lives under the principle of equality according to the provisions of the Constitution. Moreover, in 2015, Thailand enacted the Gender Equality Act B.E. 2558, which is the law that protects the rights, liberties, and equality of people with gender diversity under sections 3 and 17. The act of the Registrar of Bangkok Yai District which refused to grant marriage registration to both Petitioners citing section 1448 is thus unfair discrimination against people and people with gender diversity. The petitioners argue that such refusal is contrary to or inconsistent with the Gender Equality Act B.E. 2558 and core international human rights treaties to which Thailand is a party namely, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Judgment

The CCC Book V on Family prescribes that only men and women shall have the right to marry under the law. Although it seems to restrict the rights and liberties of persons, section 1448 is a law with the content and reason that is by nature (True law is right reason, harmonious (in agreement) with nature) as well as tradition and custom of the Thai society. Such provisions are not restrictions of rights and liberties of persons, but it was prescribed based on rationality. Furthermore, the current Constitution and laws do not prohibit people of the same sex from spending their lives together or having sexual intercourse. Neither do they prohibit an arrangement for the wedding ceremony, entry into life insurance specifying the life partner as a beneficiary, nor making a will bequeathing property unto the life partner. As for the property jointly earned, it is not prohibited from being co-owned.

Regarding the argument of both Petitioners that the rights as spouses, e.g. to consent to medical treatment, to receive welfare as a spouse, to benefit from insurance, to claim compensation for wrongful acts, or to have rights as a statutory heir, were not conferred on them, such rights do not derive directly from the status of being married but emerge according to what the laws prescribe. Thus, such issues can be solved by the provisions of a specific law. This can be seen from the drafting of the Civil Partnership Bill B.E. …, which is to confer upon the people of the same sex the right to live their lives together as well as other rights. Therefore, it can be concluded that section 1448 was prescribed based on the nature of humans. The law maintains the existence of the society as well as the tradition and customs that the society adheres to. This is an equal protection of the rights and liberties of men and women under the law which does not constitute unjust discrimination against persons on the ground of sex differences and does not violate the rights and liberties of other persons.

Nevertheless, according to the context of world society and Thai society, the rights of persons regarding sexual status are accepted more widely. The State should have appropriate measures and encourage people with gender diversity to live their lives together by prescribing a specific law to grant rights to and solve issues as well as problems in the lives of people with gender diversity.

The Court rules that section 1448 of the CCC is not contrary to or inconsistent with the Constitution, section 25, section 26, and section 27, paragraph one, paragraph two, and paragraph three, with a recommendation that the National Assembly, the Council of Ministers, and the relevant State agencies should consider proceeding to enact a law for guaranteeing rights and duties of people with gender diversity as appropriate.

Kitti Jayangakula

Prosecution of Political Protestors

According to the mass protests and demonstrations that occurred in 2020, the Thai government prosecuted political protestors for various charges. The government used the power provided by the Emergency Decree on the Administration in the State of Emergency (2005) to arrest, detain, and put street protestors on trial. There were approximately a thousand people among protestors who were prosecuted by the government, including Parit Chiwarak, Panassaya Sitthijitawattakun, Somyot Pruksakasemsuk, and Arnon Nampa who were the leaders of the protests. Some of them are children, aged younger than 18 years old. The main offenses for a lawsuit, inter alia, are lese-majeste under section 112 and sedition under section 116 of the Thai Penal Code (1956), which are the offenses related to national security. In addition, the prosecution of political protestors was implicitly supported by the decision of the constitutional court, No. 19/2564, describing as, under section 49 of the Constitution of the Kingdom of Thailand, B.E. 2560 (2017), the exercise of the rights or liberties to overthrow the democratic regime of government with the King as the Head of State.

The prosecution of accused protestors was against the principle of the rule of law in some aspects. Firstly, protestors were refused to be given bail by the Court. The court orders refusing to provisionally release protestors implicitly concluded that they would perpetrate the same offense as before they were arrested. The petition for bail of some protestors, in particular Parit Chiwarak and Panassaya Sitthijitawattakun, were denied ten times by the Court until the protestors were finally released. Secondly, having remained the accused, the protestors were detained in prison, which is the facility for convicted prisoners. They were tacitly presumed to be guilty before the court would hear and judge the case. In addition, the condition of the detention centers was not hygienic. Some detained protestors contracted many kinds of viruses, including COVID-19, which led them to fall into a serious illness. There was no report on how they were cured and recovered from COVID-19 disease. Lastly, child protestors were detained in prison with adult prisoners, which shows that the court did not apply alternatives for the deprivation of liberty of these children but used prison as the first choice. The prosecution, as mentioned above, lasted all year round and was seen as a violation of the human rights convention.

The prosecution of political protestors violates the obligation to respect the rights guaranteed in the 1966 International Covenant on Civil and Political Rights (ICCPR), the 1984 Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment (CAT), and the 1989 Convention on the Rights of the Child to which Thailand has been a state party. It violates the right to justice under these conventions. Denial to give protestors bail violates article 9, paragraphs 1 and 3 of the ICCPR. Detention of accused protestors in prison violates article 10 paragraph 2(b) and 14 paragraph 2 of the ICCPR. The unsanitary condition of the prison which is an inhumane treatment of the prisoners violates Article 7 of the ICCPR and Article 16 of the CAT. The case of prosecution of child protestors violates Article 10 paragraph 2 (b) of the ICCPR and Articles 37 (b) and (c) as well as 40 (2) (i) and (3) of the CRC. Moreover, as one of the instruments used by the Thai government to suppress political movements, the prosecution violates other rights under these international conventions, such as the right to freedom of expression, right to freedom of assembly, and right to participate in politics.

Nattawat Krittayanawat

The Forced Repatriation of the Registered Cambodian Refugees

The immigration officials of Thailand forcibly returned registered the Cambodian refugees under the threat of grave violations of human rights. Veourn Veasna and Voeung Samnang were arrested by Thai police officers on 8 November 2021 and were deported back to their home country on the next day. After they arrived in Cambodia, they were transferred to the prison facility, Correctional Center 1 (CC1), in Phnom Penh. Both of them were members of the Cambodia National Rescue Party (CNRP) which was the political opponent of the Cambodian government under the leadership of Prime Minister Hun Sen. They were targeted and pursued by that government after the CNRP was dissolved by the government-controlled Supreme Court. They were charged with many criminal offenses by the Supreme Court before they fled to Thailand in 2020. In addition, both men were registered by the United Nations High Commissioner on Refugees (UNHCR) as refugees. The UNHCR condemned Thailand’s failure to protect refugees from deportation leading to a risk of persecution.

The return of the Cambodian political refugees to their country by Thai officials was based on the Immigration Act B.E. 2522 (1979) of Thailand. Section 54 of this law empowers Thai officials to deport an alien from the Kingdom when he enters the Kingdom without permission. Thai officials reiterated that they followed the legal process and border control on the deportation of illegal immigrants with no regards to the political refugee status of the two Cambodians. That repatriation led to their lives to be at risk of severe violation of their fundamental rights guaranteed by international human rights standards.

This repatriation, through the application of the Immigration Act B.E. 2522 (1979), violated the international legal standards of human rights. Article 3 of the 1984 Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment (CAT), which Thailand has already accessed to be a state party since 2007, provides that a state party should not expel, return or extradite a person to another state in which he will be at risk of torture. Before returning a person to his homeland, the state should carefully consider whether there are reasonable grounds to believe that the destination state has a situation of gross violation of human rights. Similarly, article 16 of the 2006 International Convention for the Protection of All Persons from Enforced Disappearance (CED), in which Thailand has remained a signatory state since 2012, also prohibits a state party not to return a person to another state in which he will be at risk of enforced disappearance. Although Thailand has not ratified the CED, she has an obligation, under article 18 of the 1969 Vienna Convention on the Law of Treaties, not to refrain, in good faith, from acts that would affect the object and the purpose of this convention. Thailand should not push any persons under an enforced disappearance in any state. In addition, Thailand violates the rule of article 33 of the 1951 Convention relating to the Status of Refugees which prohibits returning a refugee to any country in which he may be persecuted. Although Thailand has not been a state party to this convention, this rule has become a customary international law binding state which is not a party. Interestingly, the rules of the three articles are based on the principle of non-refoulement which is the peremptory norm of international law or jus cogens. Peremptory norm is a customary international law that binds all states with no regard to whether any state practice is contrary to this kind of rule.

Nattawat Krittayanawat