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Thailand and international law Burns, Wayne Douglas 1992

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THAILAND AND INTERNATIONAL LAW:ByWayne Douglas BurnsBA (cum laude), Calif. State University/Long BeachLL.B. University of British Columbia (1972)A THESIS SUBMITTED IN PARTIAL FULFILMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF LAWSinTHE FACULTY OF GRADUATE STUDIES(FACULTY OF LAW)We accept this thesis as conformingto the required standard.THE UNIVERSITY OF BRITISH COLUMBIAJanuary 1992© Wayne D. Burns, 1992In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signature)Department of ^LawThe University of British ColumbiaVancouver, CanadaDate^DE-6 (2/88)ABSTRACTThis thesis is an analytical study of Thailand's, culture,society, history and foreign relations, and the effect all thesefactors have had on its behaviour relative to International Law. Itinvolves an analysis of its historical development as a sovereignstate and its early treaties with the European powers. The role ofcertain institutions in its society such as the military and thebureaucracy are analyzed particularly regarding their influence onThailand's stance on international politics and to a lesser extent,on international law. An analysis of the one case Thailand hasdealt with in the International Court of Justice is presented inthe context of Thailand's growing participation in internationalorganisations and specifically, the United Nations.As for its record dealing with human rights issues, a chapteris devoted to the reasons for Thailand's response to internationalhuman rights covenants, as evidenced by the way it treats women,minority groups and refugees.Finally, a chapter is devoted to Thailand's involvement withthe newly emerging international Law of the Sea and the problemswhich arose for its fisheries as a result of this new regime.Overall, Thailand is portrayed as becoming more aware ofInternational Law as a means to effect its policies and the exampleof its behaviour regarding the Vietnamese invasion in Cambodia isiiigiven and the favourable response its stance has received, whichhas supported the style of diplomacy it has used relative to thatconflict, over the 1980's.ivTABLE OF CONTENTSPAGEABSTRACTTABLE OF CONTENTS^ ivACKNOWLEDGEMENTSCHAPTER ONE - INTRODUCTION^ 1CHAPTER TWO - DETERMINANTS OF THAILAND'S NATIONALCHARACTER 30CHAPTER THREE - THE EXTERNAL FACTORS: THEIR INFLUENCEON THAILAND'S NATIONAL BEHAVIOUR^60CHAPTER FOUR - THAILAND AND INTERNATIONAL HUMAN RIGHTS 103CHAPTER FIVE - THAILAND AND THE LAW OF THE SEA^170CONCLUSION^ 198BIBLIOGRAPHY 203VACKNOWLEDGEMENTSI would like to express my thanks to my thesis advisorProfessor Doug Sanders who has given me invaluable advise during myyear at the UBC Faculty of Law. I would also like to thankProfessor Pitman Potter for his assistance in the problems ofresearch and his enthusiastic assistance throughout this year.Finally I would like to thank Professor Ian Townsend-Gault for hisassistance in the section on the Law of the Sea.Chapter OneTHE THEORETICAL UNDERPINNINGS TO AN APPROACHTO THAILAND AND INTERNATIONAL LAW A. Law and International Law: A Plethora of DefinitionsInternational law has, since the last war, gone through someprofound changes. But then the world it supposedly regulates hasalso changed enormously as well. With the most recent and dramaticchanges which have rendered the Soviet Union a part of history, theworld political picture has grown more blurred. The certaintiesoffered by the idea of a bi-polar world have evaporated, even if assome believe, those certainties were founded on myth. In the placeof those certainties we have a world in less focus, its ideologiesless clear cut. And if international law is to be understood in thelight of this much-changed world it must be seen for what it is.But what is it? And does it by its very nature invite incessantquestioning? Regard this litany of questions posed by W.L. Gouldand M. Barkun in the Preface to their text on International Law:Is International law insignificant, secondary, impotent?Is it merely a product of the relations between statesand therefore an instrument of no value in efforts toproduce a more orderly, less violent world? Is there nofeedback from international legal norms that can soassist a transition away from international entropy orchaos that the law itself becomes one cause of order andone indispensable instrument for the non-violentmanagement of conflict? Is law so tied up with individualcases that it cannot contribute to an upgrading ofaggregative justice for nations and their aspiring12manipulation sufficient routes to self-realization andavoidance of frustration in international affairs? 1Reviewing that list of questions one almost wishes for acomputerised answer sheet marked off with blocks appended, with"Yes", "No", "Maybe" sitting next to each question. But thosequestions continue to be repeated in one form or another in almostany text on international law one chooses to peruse. If nothingelse this eternal questioning of international law seems to pointup that the process of seeing international law clearly anddefining exactly what it is, has to be a priority for any scholarwilling to wade into its murky waters.More fundamentally, this eternal questioning as to its nature,value and function has aroused skepticism over whether, in fact,international law really even qualifies as law. Is it merelyinternational politics cloaked in the jargon of legal doctrine?This question has particular relevance when analyzing theperspective of a country like Thailand, which has been a victim ofinternational law at least the law as applied by European powers.Robert McLean in the Canadian Yearbook of International Lawsuggested that, "In addressing the issue of whether internationallaw is a species of law, critics have failed to recognize that thecrucial question is not whether it possesses such features, butwhether international law is an identifiable body of rules which1W.L. Gould and M. Barkun, International Law and the SocialSciences, (Princeton: Princeton Univ. Press, 1970). xi.3exercises a degree of normative influence on state conduct." 2Sometimes it seems that those that react to the critics ofinternational law, often have a vested interest in saying, "But ofcourse its law because it feels like law, it tastes like law, itacts like law. And anyway I have done my work in it and I am alawyer. So it must be law." But their answer is inadequate andwithout sufficient relevance to the real world.For the purposes of this analysis, international law isaccepted as being law. It is seen and accepted in this paper asexercising a degree of normative influence on State conduct. Howmuch influence depends on the many facets of the nation-state beingconsidered and that is also the crux of the approach used in thispaper, to use an interdisciplinary method to look at one State,Thailand and deduce its attitude to international law by reviewingits domestic history, its own legal system development, its foreignrelations and its involvement in some international legal issues.Law in whatever area should be seen relative to theconsequences it has for the human beings it most affects. Whileinternational law may seem far removed from individuals going abouttheir daily lives within the legal regimes of individual States,international law is having increasing effect on individual livesand sometimes in ways directly linked to their survival.Examples abound in almost any area of international law onechooses to consider. The wording of the International Convention2R .L MacLean, "The Proper Function of International Law in theDetermination of Global Behavior," The Canadian Yearbook ofInternational Law, Vol. XXVIII, Vancouver:UBC Press, 1989. p. 58.4and Protocol on Refugees is being employed on a daily basis aroundthe world to determine if an individual falls within its definitionof "refugee" and therefore if that individual deserves asylum. Thenewly emerging law of the sea is having enormous impact on thelives of fishermen, ship-owners and even consumers in the worldmarketplace. International environmental laws regulating pollutionwill have increasing consequence for individuals living theireveryday lives along international waterways and seacoasts. Andthese are only three examples of the myriad ways internationallegal norms are being applied by tribunals and government officialsin determining the fate of individual citizens.B. Sources of International Law: The Search for a Theory Much of the controversy over a definition of international lawcenters on what scholars regard as its sources, and to find themthey resort to a multitude of methods. The international laws whichhave been formed by the various processes which are usually citedas its sources, are linked inevitably to the domestic policies ofthe nation-states dominating the consensus of the time. And today,like yesterday, States formulate policies relative to thehistorical interaction with the regions in which they are located.But more importantly their view of law draws from all that has madethem a State and whatever its source, international law representssomething different for every nation according to how it hasarrived on the world scene, its own unique path to statehood within5the greater international community. 3Third World States in particular have a traditional suspicionof classic international law largely, one might suggest, because ofits origins, because they feel that so much of it was establishedto justify the actions of colonial powers. The law of reprisal isone example of customary international law from the past, still inuse today, but usually exercised in a more covert way as evidencedby the United States actions in Vietnam and Cambodia, where actionswere justified according to the verbiage of legality. But suchactions were according to many new States, merely another exampleof a powerful state using legal language as a convenient means oflegitimizing action leading to yet another small state'sdisempowerment. 4 Thailand has particularly bitter memories of thisat the hands of the French at the turn of the century, and thiswill be discussed in greater detail in Chapters Two and Three.The literature written about international law seldom seems todwell in the real world, a world made up in the majority by smallStates unfamiliar with the complexities of international law, oftenwithout lawyers knowledgeable in how international law orders theirrelations with other states. 5Law students of international law in the nations of the North,3M. Leifer, Dilemmas of Statehood in Southeast Asia,(Vancouver: UBC Press, 1972) pp. 105-114.4P.L. Pickert, American Attitudes toward International Law,ed. R.A. Falk, The Vietnam War and International Law, (Princeton:Princeton Univ. Press, 1976) 89.5Louis Henkin, HOW Nations Behave, (New York: Columbia Univ.Press, 1979) p. ix.6should be presented with their own nation's place in the communityof nations as a first step in explaining international law: theState with which they are most familiar presented as a case study,how it has behaved and continues to behave internationally, as anation-state within a regime regulated by international law. Thatshould be the lodestone for international legal scholarship: whyhas my nation acted in the way it has vis-a-vis international law?This, I would suggest, would inject more meaning into the study ofinternational law and meld it with its political underpinnings.But the presentation of international law has followed aformat primarily concentrating on its doctrinal sources, customaryinternational law, treaties and cases before internationaltribunals. This traditional approach to the analysis and study ofinternational law has neglected analysing national behaviorrelative to international politics. It divides the study from itstrue sources and fails to contextualize it. Henkins put it thisway:When nations behave consistently with law, it is commonlyseen as fortuitous; the law happened to coincide withwhat nations wished to do. There are reasons why nationsmake law and conclude agreements, and why they makeparticular law; like law in many national societies,international law results from the complex interplay ofvaried forces in international politics. There arereasons why nations act in accordance with theseundertakings. One can explain, too, why law is sometimesdisregarded. Not unlike law in a national society --- andfor reasons that are not dissimilar----international lawis observed by nations as national policy, shared withother nations, in support of an orderly society. 6()L. Henkin, How Nations Behave, New York: Columbia Univ.Press, 1979), 10-11.7Some international legal scholars regard the relationship ofnational behavior in the international system to the applicationof international law as not only one element of many, but the keyto an effective understanding of its various mechanisms. Mr. AhmedSheikh relying on the writings of scholars such as Richard Falk hasclaimed that national behavior should be the at the root of anyanalysis of international law. As he said:There is... a considerable difference between themythical law that will prevail over national interestsand, in fact, will abolish international politics, andthe fictitious law that unsuccessfully conceals the starkrealities of international politics. This is the realm ofinternational law that is intertwined with internationalpolitics and therefore, can be best studied in thecontext of international politics. It reflects theparamount political interest of nations. It registers thedynamics of international politics that are bothconsensual and conflictive and takes note of the systemicadjustments. It expresses in its stability andinstability the political demands for order andpredictability and for rapid change. It is the realinternational law. It makes no promises to transform theinternational system overnight nor does it provide a maskfor states to disguise the realities of that system. Itestablishes channels through which states may achievetentative accommodation between their simultaneous urgesfor freedom of action based on notions of sovereignty,(i.e. a nation's right to be unpredictable) and theirneed to act in predictable patterns to be able to dealwith the major catastrophes that always seem ready toerupt in the international system. 7International legal scholars are duty bound, it seems, tofirst determine their own view of what international law signifiesand this of course remains another cause for endless debate if notconfusion. It is difficult enough to formulate an informed opinion7Ahmed Sheikh, International Law and National Behavior: ABehavioral Interpretation of Contemporary International Law andPolitics New York: Wiley & Sons. 1974. p. 58of the definition of law itself that a majority can agree on, asubject providing enough material to keep an industry alive, nevermind finding an answer satisfactory to all people as to whatconstitutes international law. Nevertheless, definitions whiledifficult to agree on and certainly not writ in stone, give bothscholars and their readers the underpinnings for further discussionor at least the basis to understand where a writer is going in aparticular analysis.For the purposes of this work, law appears to be a body ofnormative rules created by a group which shares a view of itself asa viable community and according to Sheik, "...[these] rules aregenerally regarded as the outcome of a successful political processin which the people have had some say" 8 . But as he goes on to pointout, even this definition is not an all-inclusive view of law.Neither in the People's Republic of China nor the former SovietUnion at least at the time he was writing in 1974, was law viewedthat way. Instead according to him, law was viewed primarily as an"instrument of state policies". 9 But if a general definition of lawitself is still called into question by individual States, thenobviously this also enters into the way each of them views emerginginternational law.In addition to the above view of law, it should be necessaryto include the more mundane aspects of law's role in a domesticsociety. Almost every facet of human is regulated by law in almostssupra. Sheik, p.220.9lbid9any society one chooses to study. This regulation, in a so-called"civilized" society is so pervasive, it is often taken for grantedby most people. One does not cross a street without bringing lawinto play. And this has a spin-off for an appreciation ofinternational law."There is not a nation in existence that does not basicallyaccede to the vast mass of international law which we take forgranted. If any nation does not comply with the long-establishedrules on various formes of sovereign immunity, for example, theprotected status of embassies on its territory, it will be declaredan outlaw by other states which will ignore its existence. Or asHenkins puts it,"Although there is no international 'government,' thereis an international `society'; law includes the structureof that society, its institutions, forms, and proceduresfor daily activity, the assumptions on which the societyis founded and the concepts which permeate it, thestatus, rights, responsibilities, obligations of thenations which comprise that society...""Irrespective of cultural and ideological divergencies on whatlaw is, the key elements whatever the State, would appear to berules and a sense of community. International law by definitionaims at providing rules to govern what States can and cannot do.But the community made up of individual States must feel that theirindividual interests are better protected by rules established asguides to the individual entities within the community.MHenkins, supra in note^at p. 14."Ibid.10International law is therefore reflective of these two essentialelements of law which span cultures. It has been developed by thecommunity of nation-states. And the rules have been established bythe community of nations because they feel their interests arebetter served with them than without them.To arrive at a satisfactory definition of law and thereforeinternational law carries the observer back to the roots of lawitself, and the philosophical schools which have devised theoriesregarding its roots. But the search for a general theory is anexercise which has hamstrung much greater legal scholars than thishumble writer. 12It is enough to say that today humanity seems to have movedtoward a view of international law based on what has been looselydescribed as natural law. The question of what is right and what iswrong behavior, even when it is the behavior of a nation, wouldseem to be defined in most societies according to a perceivedconnection between law and some greater power beyond the pettyworld of human beings. The Nuremberg Trials dramatised theacceptance of this view but that still does not halt the endlessquestioning that continues to plague international law, aquestioning which some writers even suggest lies at the heart ofit.Nevertheless, the world community seems to share a belief thatwe can as a global community create a Universal Declaration ofHuman Rights believing that it articulates what humanityuGould and Barkun, op. cit. supra at pp.15-18.11universally regards as the basic human rights all nation-statesshould respect and guarantee their citizens. Mark Gibney writingrecently on this discussion observed, "...some of the literatureconcerns itself with cultural relativism and a central issue hereis the extent to which notions of human rights are universal, orwhether certain human rights norms merely reflect the dominantideology in a particular country or in the world more generally. 13While some States continue to deny the rights to their own citizenswhich were enshrined in the Universal Declaration, there should beno doubt that its passage in 1948, was a guiding light which acountry like Thailand, even though a military dictatorship for mostof his last fifty years, saw important enough to echo in its ownconstitution.C. International Law as Doctrine: A System of Analysis Some societies as nations, make no effort to disguise theconnection between their laws and the dominant religion in theirsociety. And undoubtedly their behavior in reaction tointernational law would have to be analyzed relative to theirnational view of law generally and its religious linkages.When this line of thought is continued beyond the origins ofdomestic law to the level of international law, the definingprocess is carried a step further. After all, whatever theory weemploy to explain law's origins generally, international law cannotbe the result of only one school of thought since it is the product13Mark Gibney, "Introduction" World Justice? US Courts andInternational Human Rights, Mark Gibney (ed.) (Boulder: WestviewPress, 1991), p.ix.12of a shared consciousness of law, collectively realised by thedivergent views of law in the nations making up the worldcommunity. It is almost by definition a supreme compromise, amiddle road. And to approach an analysis of one nation's behaviorwithin the arena of international law, it seems necessary to firstaccept the middle ground, between a view of law generally describedas originating from the dictates of a supreme decision-maker(however characterised) and the contrary view which sees law as asynthetic body of human-made rules which have evolved out of thebabble of human history and international politics.Richard Falk has stated that international law has a dualnature which takes it beyond this discussion of its origins. It is"...an intellectual discipline devoted to the study of order inworld affairs and an operative code of conduct capable of exertingvarying degrees of beneficial and detrimental influence on thequality of international life."14 He further suggested that"...the growth of legal authority must be conjoined with the locusof political power.""D. Choosing the Analytical Tools to Contextualize International LawBetween the two schools of thought often characterised as thepositivists versus the naturalists, or in more international terms,14Richard Falk, "The Relevance of Political Context to theNature and Functioning of International Law: An Intermediate View."The Relevance of International Law, K.W. Deutsch and S. Hoffmann,(editors), Cambridge: Schenkman Co., 1968. p. 141."Ibid.13the views of the skeptics who despair that nations merely useinternational law when it suits them, versus the optimists whobelieve we are moving toward a world utopia ruled by law, there isaccording to Falk also a happy medium. 16While most societies would seem to see law, whatever itssources as functioning to regulate individual excesses, it wouldhave to be agreed whatever national system one looks at, that lawis an imperfect social tool. One has only to look at one's ownlegal system, or even one as blatantly linked to divine sanction asthe "shariah", the holy law of Islam, to see that law is frequentlyviolated by the members of whatever societies it regulates. Thisawareness might lead the observer of the international scene tofurther despair, since even the leading nation-state citizens ofthe world community at times act in complete disregard forinternational law. But this seems to dismiss too quickly its valueas an evolving phenomenon. While it may not ever be an absoluteguarantee that we will live in a completely ordered society orworld community without disruptions to our peace, international lawcan do the job of making our world more orderly, more orderly thanit would be if we had nothing comparable to the rules ofinternational behavior to keep nations from acting unpredictably intimes of crisis.171. Compliance or non-compliance: 16Ibid"Henkin, op. cit. supra. at pp.12-27.14To determine whether a State complies or does not comply withinternational law requires the setting up of some sort of methodfor analysing if law has affected national behavior, and if so,how. Or as Falk wrote, " ...conjoining law to politics withoutcollapsing the one into the other and attaining a realism thatneither expects law to guarantee a peaceful world nor concludesthat law is irrelevant to international peace." 18He outlined how international law can give to States a guidefor them to use in times of crisis and therefore a more reasonedmethod for them to weigh up the pros and cons of alternativesavailable to them in determining their foreign policies. Further tothat, he points out that the institutions of international law havebegun to facilitate a variety of cooperative endeavours in ourworld which have arisen out of states seeing the need to shareresponsibility. And there is the alternative to this, that suchcooperative ventures can inhibit state behavior by threatening adenial to uncooperative states of access to the benefits ofparticipating in such ventures. 19But the first step in attempting to analyze what laws a nationcomplies with or does not comply with, would seem to be to firstlook at what sectors of international law seem to have had the mostimpact on a particular nation's national behaviour. In Thailand'scase for example, being a small, largely regional power, many areasof international law have had little impact on it. But even beforeMFalk, supra, note 2, p. 147.15attempting to describe the effects of international law on aState's behaviour, it is necessary to formulate a system forpresenting a profile of that State, and illustrate why it hasreacted the way it has.In Thailand's case as a developing nation in Southeast Asia,international law relating to Antarctica, outer space or the deepsea bed are not sectors of international law which one would expectto find much Thai activity. But if international law is broughtinto play to determine which nation controls a temple straddlingits border with a neighbour, undoubtedly one would expect Thailandto be very active in whatever process is used to determine whichnation owns the temple.2. The Steps to Analysing National Behavior: Macro-PsychologyThere are several steps to any analysis of a nation's behaviorvis-a-vis international law. First it seems necessary to arrive ata general idea of what can be agreed on as contributing to thenational attitudes of most if not all States. Once thosedeterminants are pinpointed it follows that certain behaviour canbe presumed. 2°Second, in reviewing a State's foreign policies historically,patterns of conduct will emerge and where those arise, either fromits internal make-up or its view of the external reality affectingit, a researcher can show how and why that State has acted the way20J.N. Rosenau, Foreign Policy Analysis Methodology: In Searchof Global Patterns, 1976. 5.16it has vis-a-vis international law and politics, and possibly,predict how it will act in the future. This requires a review ofwhat has determined its national personality, the development ofthose attitudes to the external world and the behavior that hasresulted.Third it seems necessary to structure an analysis of onenation's behaviour, its foreign policies, and its reactions tointernational law by looking at what areas of international lawparticularly affect that State and arrange the analysis of thatnation's behaviour relative to those areas. This process is nothelped by a dirth of such approaches in the literature. Or asBarkun and Gould stated, "The paucity of truly empirical studies ofthe nature, functions and uses of law in international relationsleaves speculation virtually unrestrained. It 21Any attempt to do this has to involve using information fromother social sciences: history, political science, sociology,anthropology and even behavioral science or psychology. It seemsnecessary to systematically analyze the many facets of a nation'scharacter which go toward its sense of national identity within theso-called "society of nations".If a nation refuses to abide by an accepted rule ofinternational law, or seldom signs or ratifies internationalconventions or covenants, then there are reasons for that behaviorand those can be found in all that makes up that nation's characterand the determinants of its stance internationally. If on the other21Gould and Barkun, op.cit. supra. at p.126.17hand, the nation picks and chooses what international laws itaccedes to but generally supports the spirit if not the substanceof international law, then that behavior too is rooted in thenation's personality, in its view of itself relative to the globalcommunity.3. Ideology: Critical Legal StudiesLooking at ideology as it affects international law might seemoutdated in light of the revolution occurring in the bi-polar viewwe have lived with for so long, Marxism versus capitalism. But itmust be stressed that the break-up of the Soviet empire does notmean the Marxist view of state and international law has evaporatedfrom the globe. The entire school of thought loosely termed"critical legal studies" would seem to rest on a "leftist" view oflaw similar to that of Marxism, that, "...all law being for itmerely an expression of the will of the dominant classes in defenseof their power and privileges, international law can be nothingmore than a projection into international relations of the rulingsocial ideas of a given period. Relations between States of totallydifferent social structures can therefore sustain only a verypartial and entirely provisional legal integration." 22The Critical Legal Studies movement has carried its dialecticinto international law by attempting to clarify its true path,while deconstructing the old order based on the classicalobjectivist school which was obsessed with a formalistic analysis22C. de Visscher, Theory and Reality in Public InternationalLaw, trans. P. E. Corbett (Princeton: Princeton Univ. Press, 1968),169.18of the "rules". But this effort to illumniate in a new modernistlight the musty corridors of international law, has opened theapproach up to critique as well. Purvis describes this New Streaminternational legal studies movement as striving for somethingwhich may make them into exactly the utopians they criticize: "NewStream scholars believe that international discourse should focuson poverty, totalitariansim, rascism, sexism, illness, hunger andincome inequality. They see international discourse as a tool ofinternational development and an instrument of politicalempowerment." 23Purvis says further on, that these lofty goals must be putinto practical terms: "If international legal discourse stands achance to live up to the role created for it in the fight for worldjustice, we must conceive of an ethical foundation forinternational social life beyond modernism." 244. The Third World view of International Law and its colouringof National BehaviourWhile many conservative Third World states like Thailand wouldcertainly not enjoy hearing their international attitudescharacterized as Marxist, Third World States regard the West'sattitudes to international law as keeping them down. The WesternStates still often seem to be acting in the guise of formermN. Purvis, "Critical Legal Studies in Public InternationalLaw," Harvard International Law Journal, 32:1 (Winter, 1991), p.117.24Ibid. p.127.19colonial powers protecting their traditional powers and privileges.In other words the rhetoric of Marxism through such Third Worldexponents as Cuba and China, has entered the vocabulary of the non-aligned movement in international gatherings.It is difficult enough to piece together the jigsaw puzzlemaking a nation an international personality, to try and figure outwhy it behaves as it does as an international citizen. And it isdoubly difficult to characterize a grouping of nations so huge anddiverse as the so-called "Third World" and point to shared views oninternational legal issues.The Third World includes nations with enormously divergenteconomies, levels of wealth, ideologies and size, to the pointwhere the term has become almost meaningless. Nevertheless thereare some realities which Third World nations share. Even if anation like Thailand does not feel it has the same position on aparticular issue as other Third World States, it still may feel theneed to act in line with other Third World nations, especially ifthey belong to the same regional bloc. The following are some thecharacteristics generally shared by developing states vis-a-visinternational law and organisations. 25a. Recent Induction into the International Legal CommunityThe rapid influx of newly emerging nations since the last waras international personalities has had a phenonmenal impact on thetrends of international law in this period. Not only has the West25R.H. Fifield, National and Regional Interests in ASEAN,(Singapore: Institute of Southeast Asian Studies, 1979) 1-2.20been forced to acknowledge their points of view, but it has had todo so based on law which existed prior to these new statesemergence, regarding the recognition of state sovereignty and allthe international rights which sovereignty accords. Onceindependent and recognized as legitimate internationally, thesestates became entities within an international legal system butironically a legal system primarily created by the Western nationsreflective of their own specific needs internationally. While theseemergent nations are generally weaker, poorer and less versed inthe traditions of law than Western nations, as independent nationsand members of the United Nations, they have become legalpersonalities internationally and they have lost no time in makingtheir views felt on international law since prior to their creationand independence. Prior to their autonomy, international law aidedand abetted their subjugation. 26b. Anti-colonialismSince the first developing states began to gain theirindependence in the 1950's, anti-colonialism and the principle ofself-determination, have been the one sure rallying cry for theStates making up the Third World. Even a State as firmly committedto the Western bloc as Thailand has felt itself a part of thecollective recognition of having been a victim of the internationallegal system imposed on them by the old order of the Imperialists.It has taken a long time for the suspicion and hostility of many26Sheik, op. cit. supra. p. 235.21Third World countries to soften. 27 And given the "New EconomicOrder", the debate on intellectual property and chronicindebtedness of developing nations to the developed North, the olddebate has taken a modern twist.It is still not difficult to find Western legal scholarswriting on international law and using the expression "civilised"nations especially when discussing human rights. In other words thelegacy of bias is still visible on both sides, but the anti-colonialist sentiments of former colonies are especially heartfelt,even by States like Thailand that were never colonized. As R.P.Anand, an Indian scholar described international law, "...[it] wasdeveloped during the last four centuries and specially consolidatedand systematized during the last part of the nineteenth andbeginning of the present century. Asian and African countries hadvery little to do with it because they were conquered and colonizedand made to serve merely the interests of the metropolitan statesand their masters." 28For most statesmen in the period before the last great war, toconsider the aspirations of the colonized peoples in the Europeanempires, was to consider them only in light of the manifestdestinies of the Empire. The egoism of those statesmen promptedthem to talk of law and freedom as defined, not by the subjugatedpeoples they ruled in their empires, but by the needs of thedominant power. Sir Winston Churchill commenting on the rise of27Ibid.28 As quoted in Sheik, supra at page 220.22Germany in March, 1936 before a Parliamentary Committee on ForeignAffairs stated:It is at this stage that the spacious conception andextremely vital organisation of the League of Nationspresents itself as a prime factor. The League of Nationsis, in a practical sense, a British conception, and itharmonises perfectly with all our past methods andactions. Moreover, it harmonises with those broad ideasof right and wrong, and of peace based upon controllingthe major aggressor, which we have always followed. Wewish for the reign of law and freedom among nations andwithin nations, and it was for that, and nothing lessthan that, that those bygone architects of our repute,magnitude and civilisation fought and won. 29c. The Have-Nots Another sure unifying force for Third World states has beentheir shared consciousness as "have-not" nations. Thailand, whilemoving quickly toward economic well-being still shares with theother members of the Third World the attitudes fostered by ahistory of underdevelopment. Even the oil-rich nations of theMiddle East while not poor on a per capita income basis, arelacking in the technological and industrial structures which aredefined as separating the developed nations from the Third World."And this shared attitude has implications for international law and29Sir Winston Churchill, "The Foreign Policy of England," inReadings in World Politics, ed. R. A. Goldwin, (New York: OxfordUniversity Press, 1970),641."Henkins, op.cit. supra. at p. 126.23its development, in everything from intellectual propertyprotection to General Agreement on Tariffs and Trade.d. Third World Reasons for Observing or not Observing the Rules of the New Order in International LawOne quick perusal of a legal periodicals index shows up animmediate dirth of contributors from Third World countries. Most ofthe debate regarding international law is still centered in theWestern countries. They are the ones which have developed a fluencyin the language of international law and their writers spawn mostof the literature. This means that the discussion of internationallaw in developing countries, even when they are becomingincreasingly affected by its regime, is still very basic.The example of the states of Micronesia comes to mind intheir dispute with the United States over access of the Americantuna fishing fleet to their migratory tuna resources. They were ata tremendous disadvantage in the dispute, because nowhere in theislands was there an adequate law library. Not to speak of acomplete absence of trained international lawyers. 31Even when a viable legal profession is in place, it is usuallytoo busy dealing with the myriad other jobs there are, in dealingwith so much other legal business in the running of the legalsystem to be involved in the esoteric and seemingly luxuriousmProfessor Munroe, Interview at UBC Faculty of Law, March,1991.24business of debating issues of international law. 32In addition to often fledgling views of law generally intheir populations and educated elites, many Third World governmentsface pressures from their people based on nationalism, or economicsto not comply with international law.Many of these new nations also, have no need to tailor theirforeign policies to the rules of international law since theirresources are meagre and often their preoccupation with the outsideworld goes only as far as their efforts to attract foreign aid.Some of these nations even favour a general instability in theirregions because it enhances what their leaders have set as theirnational agendas. 33In addition to the above themes in assessing Third Worldnations' compliance with international law, there are numerousother considerations which should order any analysis of a State'sbehaviour. How that state has reacted to tensions generated by theEast-West conflict will inevitably be carried into its observanceor non-observance of international law. Its relations regionally,its membership in regional associations or alliances will haveeffect on its compliance with law. The nature of its politicalsystem and its adherence to principles of human rights will affectits reaction to the emerging and controversial regime ofinternational human rights laws. How it has dealt with theenvironmental concerns domestically and whether it does or does not32 Henkins, op. cit. supra . p. 130.33Ibid. p. 131.25share important parts of its environment with its neighbours willaffect its behaviour on the newly developing internationalenvironmental laws. On a more general note, all Third World nationshave had their identities confirmed by the support they havecollectively generated and received from InternationalOrganisations, specifically the United Nations. But Third Worldnations vary in how much they participate in the United Nations.Many of them are key players. Collectively their participation hasdone much to make international law more inclusive of theirconcerns. As Henkins observed:The influence of the Third World on law and lawobservance promised to be greatest in and through theUnited Nations organization in regard to thoseinternational obligations that have been the principalconcern of that organization and the new law which theyhave tried to make there . 344. Thailand and International LawWhy Thailand? In addition to the many subjective reasons forchoosing Thailand as a Third World nation deserving of studyregarding how it behaves relative to international law, there area number of sound, objective reasons.First, historically Thailand has survived as a viable nation-state free of colonialism and to all intents and purposes, has beenan independent decision-maker for over a millenium. Its status ashaving never been colonized is a source of pride to its people. Itis therefore quite unique in Asia, and the Third World in having along history of independent relations with European states and34Ibid. p. 134.26therefore a long history of involvement in international law.Second, Thailand had an early involvement in internationalorganisations, being a founding member of the League of Nations andan early member of the United Nations.Third, Thailand has domestic characteristics as a nation-statewhich render its behaviour particularly interesting as a casestudy. It is a relatively homogeneous nation, with a largeproportion of the people (90%) speaking one language. So too it isrelatively homogeneous in terms of its religion, since a similarpercentage of its people are Buddhist, which undoubtedly influencesits view of the world. Geographically, it is split between themaritime and archipelagic part of Southeast Asia and thecontinental north. This influences its climate and the livelihoodof its people. The region where it is located is especiallyimportant today as one of the fastest economic growth areas in theworld. Yet at the same time it shares borders with some of thepoorest and least developed nations in Asia. Finally, it is aconstitutional monarchy. The monarchy has given it a unique touchto its view of itself and inevitably had consequences for itsforeign relations and for its behaviour relative to internationallaw . 35For all of the above reasons, Thailand, as distinct from otherSoutheast Asian nations like Malaysia, or Indonesia has a"All of these characteristics, I present as givens. Forreferences and an extensive bibliography on Thailand as a BuddhistKingdom see Charles Keyes, Buddhist Kingdom as Modern Nation-State,(Boulder and London: Westview Press).27remarkably stable and cohesive sense of its own national identity.This has meant that its nationalistic sentiments are oftenpassionate especially when its sensitive political toes have beenstepped on. It also means that with a relatively unified populationproud to be included on the "Thai team", it is correspondinglyeasier to depict certain traits as distinctly Thai, and thereforeto link them to the nation's actions relative to international law.Not that this process will be faultless. Inevitably, evenwith a State as culturally together as is Thailand, there arepitfalls awaiting the hapless scholar who is only too willing todraw conclusions where the evidence is meagre.Nevertheless, the exercise while fraught with scholasticdangers and a dirth of materials on Thailand's view ofinternational law, is instructive as a case study of one ThirdWorld nation with a longer involvement with international law andorganisations than many others.Because of its position in Southeast Asia and its membershipin ASEAN, Thailand is worthy of study as well. The recent historyof Cambodia, the refugee situation along its borders, the rapidchanges taking place in Indochina and Thailand's pivotal positionas a stable, pro-Western State with a prosperous and growing marketeconomy guarantees that its importance will likely continue to growin the next decades politically because its prestige would seem tohave been enhanced by the ceasefire and peace initiatives nowtaking place in the region.This analysis begins with a review of the main determinants28which formed the Kingdom of Siam and then Thailand as a nation-state. The approach is descriptive, but by necessity brief, drawinga picture of all that has gone into making Thailand a viablesociety and cultural entity. This includes a review of itshistorical development and the century of interaction with thecolonial powers. There is an equally general discussion of thedevelopment of its legal system and Thai cultural reactions to law. 36Chapter 3 presents an introduction to Thailand's foreignrelations and what have been its main determinants historically.There follows a discussion of the themes characterizing Thailand'sstance internationally. This is followed by a discussion of theareas of international law which have had the most impact, and howThailand has behaved when confronting them. The approach once againis historical, following through Thailand's foreign relations sinceWorld War II, the treaties it has signed, and its position oncertain issues before the United Nations and its organisations. The36See, Corrine Phuangkasem, Determinants of Thailand's ForeignPolicy Behavior, (Bangkok: Thammasat Univ. Press, 1984) Whatdetermines how a country responds to the outside world? CorrinePetchakesem attempted to set up a quasi-scientific study of thedeterminants of Thailand's national behavior in its foreignrelations. She also took on certain methodological tools fromstatistics and political science to measure the extent of influencethe factors she pinpointed had on the formation of Thai foreignpolicy. The effort, while barely readable, did survey through aquestionaire distributed to four former Thai Prime Ministers andseveral other officials such as former Foreign Ministers, what theyconsidered to be the main determinants of Thai foreign policy. Halfof those questioned seemed to feel that both internal factors andexternal factors were balanced in their influence on foreign policymaking. This study will be referred to in greater detail in thenext Chapter.29germ of this chapter resides in an analysis of the case brought byCambodia against Thailand, before the International Court ofJustice over the disputed ownership of the Temple of Preah Vihearwhich straddles their borders.In Chapter Four, a discussion of the International Law ofHuman Rights and Thailand's general position is presented. At theoutset, Thailand's the domestic responses to human rights and civilliberties are reviewed along with an analysis of how its politicshave inhibited the development of civil liberties. From thisopening, an analysis of Thailand's response to two key human rightsissues with international implications is presented: first of all,its treatment of its minorities, and specifically its hill tribes;secondly, its behaviour relative to international refugeeconventions and the problems it has had accommodating the thousandsof refugees who have flooded into its territory from Indochina.Chapter Five offers a discussion of Thailand's behaviourvis-a-vis the emerging Law of the Sea and the impact thisConference has had on its economy and the livelihood of itsfishermen.A short summary is presented at the paper's end, synthesizingthe conclusions which can be drawn and linking them in a generalstatement on Thailand's perspective on international law and whatcan be anticipated regarding its compliance in the future. Thisconclusion will also present some suggestions on how internationallaw has modified Thailand's behaviour and encouraged it to not onlychange but incorporate international law into its own legal system.CHAPTER TWO DETERMINANTS OF THAILAND'S NATIONAL CHARACTERIntroductionThailand has had a long involvement with the regime ofinternational law and organisations dating back to its involvementwith the Hague Conventions in the last century. This Chapter beginswith a general introductory view of Thailand's national personalityas formed by its geopolitical situation, and its history. Therefollows an overview of some of the discernible patterns revealed byits history and still evident in its national behavior today whichhave given rise to trends in its relations with other states. Thisis followed by an exploration of Thai attitudes to lawdomestically.A. Geopolitical Facts of the Thai land and its People 1. ClimateThailand or Siam as it was called until 1939, 37is a tropical37Prior to Premier Pibul Songgkram changing its name toThailand, the Kingdom was known to the world and recognised as amember of the League of Nations as the Kingdom of Siam. This name3030acountry. Its climate varies from north to south, with the southernregion more connected to the monsoonal cycle common to Malaysia andIndonesia and the north, especially the far north, affected by theland mass of China and beyond to Siberia. Over most of Thailand,the rains begin in May and continue to early November. Thenthroughout the cool dry season and later the hot season in Marchand April, the country survives on the water flowing in its riversor stored in village cisterns.2. Historical Economic SystemThe majority of Thailand's people are still tied to the land.Agriculture is still the predominant economic activity of thepeople although this is changing rapidly. The land in the north iscovered in hills which until the 1950's kept the valleys thereremote. Most of Thailand's population has settled in the richcentral river valleys and the settlements they have establishedover the centuries have, for the most part been devoted to thecultivation of rice . 38The first settlements to be established in Thailand were setup to cultivate rice and up to the last few decades there was anequal dependence on Thailand's abundant tropical forests forbuilding materials, game, and other foods. Uncontrolled logging haseradicated much of the Kingdom's forest cover in the last fiftygoes back to antiquity and is generally thought to have originatedfrom the Chinese.38C.F.Keyes, Thailand: Buddhist Kingdom as Modern Nation-State,(Boulder and London: Westview Press, 1987) 8.31years and made Thailand a net importer of timber."In any discussion of Thai culture and its main determinants,rice must be mentioned not only as the staple of the Thai diet, butbecause of its requirements as a crop which have structured the wayThais have used their land through the centuries. Legallyestablished land boundaries between landholdings have undoubtedlyfollowed the contours of the land as they best suit ricecultivation. 4°Until the advent of modern fertilizers, rice fields dependedon the annual flooding and flow of water from rivers and canals toreplenish the soil nutrients used up by each year's rice crop. Thismeant that a vast and intersecting web of aqueducts, main canalsand smaller irrigation channels were early on in Siamese historyused to make Siam's central river valley a vast garden of ricepaddies. °B. Population1. The Thai peoples For most of Thai history there has been sufficient land3 9This figured extensively in several articles I wrote for theBangkok Post from 1985 to 1990 on the consequences for variousregions. My most recent series of articles was on the eucalyptusplantations being established in areas of formerly forested landwhich was not being used for other forms of agriculture. Villagersin many parts of Thailand were demonstrating against eucalyptusbecause of reports that the trees, not being native to the countrywould take over and destroy the soil for indigenous tree species."See C. Keyes, generally on how rice is cultivated and how thegrid system of paddies in the Central Valley of Thailand stretchesback centuries to before Ayuthaya. See also, Wyatt.0Keyes, supra, p. 9.32to feed the population and provide almost everyone with alandholding. They may have had to hack a rice field out of thejungle, but still there was always the sense that land wasavailable even when the population expanded. 42 While this is nolonger the case, Thailand is one of the few countries in Asia whichis a net exporter of food and the people are relatively well-fed.According to the most recent census as quoted in Keyes, 99percent of the populace are citizens of Thailand, and 97 percentspeak Thai. While the government in its census would seem to lumpmany different groups under general descriptions such as "Thai-speaking" or "Buddhist", and is anxious to portray the Kingdom asa homogeneous society, Keyes suggested that:"Language acquired from one's parents, and spoken athome, the religious tradition inherited from one'sparents, memory of descent from immigrants to Thailand,and stories of past political independence from ordiscrimination by the government in Bangkok are the mostsalient attributes for those who claim distinctive ethnicidentities in Thailand." 432. Non-Thai Minorities While this subject will be dealt with in more detail in theChapter on Human Rights, it is important when establishing anintroductory understanding of the Thai personality and the42At the end of World War II, Thailand had a population around14 million people. In the 1940's and '50's, the population expandedrapidly and by the 1960's it was close to 50 million. It was thenrecognised that the high birth rate, combined with a rapid declinein the mortality rate and an increase in the average lifeexpectancy because of better medical care, had begun to put astrain on Thailand's available resources, especially land.0Keyes, supra, p. 15.33determinants of its national character that there are many non-Thais in Thailand (although in percentage terms they are not majorportions of the population). Nevertheless, there has long been apolicy on forming Thai nationality and the Thais have beenextremely successful at assimilating those who are not originallyThai. In the south, the most resistant to this process have beenthe Malay Muslims who make up a sizeable proportion of thepopulation of the four most southerly states in Thailand, strungalong the frontier with Malaysia.In addition to the Muslims, there is a Chinese populationwhich makes up Thailand's largest minority group. It has becomeimportant and wealthy especially in in the last fifty years.Centered primarily in Bangkok, where it is estimated, 25% of thepopulation is Chinese, the group is predominant in trade andcommercial activities, although now third and fourth generationThai-Chinese are found in all walks of life."Finally, there are the peoples of the hill tribes who liveprimarily in the north but are also strung along the western borderwith Burma. All of these groups have figured in helping to formcertain national Thai attitudes, national policies and attitudes tointernational law which will be discussed in greater detail inH. E. Smith, The Historical and Cultural Dictionary ofThailand, (Metuchen , New Jersey: Scarecrow Press, 1976) 20-21. Forgreater detail on the Chinese in Thailand and a history of theirarrival, settlement and assimilation see, R.J. Coughlin, DoubleIdentity: The Chinese in Modern Thailand, (Hong Kong: OxfordUniversity Press, 1960).34later chapter four. 45C. Historical Development 1. The Early History: Pre-history to 1767 Anthropologists and historians are still at odds over where theThais as a people actually originated. Linguists have drawnparallels between the Thai language and the Tai peoples scatteredacross the remote hills and mountains of South China, Laos, andBurma. These language roots are the strongest link connecting themodern Thai with the peoples and tribes to the north. As the theorygoes, the Tai people began moving south from China around 700 AD,although this has yet to be clearly confirmed by historicalevidence."By the llth Century this influx had produced a large Tai-speaking population which had settled in much of the north andnortheast of present day Thailand. These immigrants beganpressuring the established kingdoms in the region. Around presentday Bangkok and covering the territory into Burma, the Buddhist Monhad established an empire. To the east, the large Khmer Empirecentered in Angkor had been in place for several centuries. Theinterlopers from the north seemed to have got on reasonably wellwith these empires and by the 13th century Tai lords had beenestablished in a number of centers in the north, paying homage to45Ibid. 60.46D.K. Wyatt, Thailand: A Short History, (New Haven: YaleUniverstiy Press, 1984) 20.35the rulers to the south. 47By the 13th Century, the southern kingdoms were in decline andone of the Tai lords had established a strong kingdom of his own ata place called Sukhotai in the north. Today, this city of ruins iscited as the birthplace of King Ramkamhaeng who is credited withdevising the first writing system for the Thai language. This citywas also an important center for Buddhist culture and art, and sentdelegations to China to the court of Kublai Khan."2. The Ayuthaya Period: 1350 to 1767 But Sukhotai had a relatively short role in Thai history. Tothe south on the banks of Chao Phya River, another Tai kingdom hadbeen founded by King Rama Thibodi (1350-1369). 49 This was thefabled city of Ayuthaya, centered on an island in the Chao PhyaRiver which drained most of central Siam. In 1431, Ayuthayan forcesoverran the Khmers and captured Angkor itself. Ayuthaya alsoabsorbed Sukhotai to its north becoming the only effective power inthe area and the center of a powerful state known as Siam."The only other Tai state which had evolved and stayed viablewas centered in Chiang Mai in the far north along the Mekong. Thecity kept its freedom from Ayuthaya primarily because of its remotelocation in the northern mountains. Isolated and self-contained,Chiang Mai became a famous Buddhist literary center, only falling48Ibid49Smith, supra in note 3 at p. 61"Ibid. 62.36to Ayuthaya and later the Burmese several centuries later."A feature of Thai history which would have consequences forAyuthaya 200 years later were the wars between Ayuthaya and theBurmese. One of these, in 1569, resulted in the Burmese makingAyuthaya a vassal state. During the fifteen years of Burmeseoccupation, Thai law and custom were adapted to Burmese influence.At that point Thai law had been primarily based on the Palace Lawof one of the greatest Ayuthayan kings, King Trailok (1448-1488),which established the rules for court, the royal hierarchy and thegiving of tribute to vassal states and provinces. 52After its liberation from Burmese rule, under King Naresuan,Ayuthaya quickly regained its former power. In control of a vastarea of river-fed rice lands, and in possession of the ceremonialartifacts of the Khmer court, Ayuthaya through the next centuriesgrew in wealth and prestige until by the 17th Century it wasreceiving delegations from abroad which wrote glowingly of itsmarvels."Larger than either Paris or London at the time, it was acity of canals, temples and palaces, characterized by some of theseadventurers as the "Venice of the East". Buddhist temples andstupas formed a skyline for this island city, glittering withmosaics and gold leaf. Some of the foreign visitors settled,notably some Japanese Christians fleeing oppression in Japan and"Ibid. pp. 61 to 86.52Smith supra in note 3 at 62"Wyatt supra in note 7 at 43.37later the Portuguese and the French. %Ayuthaya's contacts and trade grew and the Europeans viedwith each other to gain a foothold in the Kingdom in order tomonopolise the outflow of teak, rice and other exotic commoditiesSiam was producing. But in 1688, the growing military power of theFrench aroused opposition to the increase of foreign influence atCourt and a backlash resulted. Westerners were ejected from Siam. 55Ayuthaya over the centuries of its development and growth, setdown the foundations for Siam as a nation-state. Its legacy isstill discernible today especially in the structure of the Thaibureaucracy and social hierarchy and the foundations of the Thailegal system. It also sent delegations to China and to France andset up what can be regarded as the first Siamese Legationsabroad. 56 Many of the social structures that persist eventoday in modern Thailand can be traced back to the traditionsestablished in Ayuthaya. At the center of Ayuthayan society was ofcourse, the monarch. The Kings of Ayuthaya laid down an elaboratelegal system, which established a hierarchy in two divisions, themilitary and the bureaucracy with the monarch at its apex.Buddhism was Ayuthaya's official religion and the monarchywas inextricably connected with the Buddhist hierarchy. Ayuthayaalso enacted compulsory military service and by the time the541W. Burns, One Hundred Years of Japanese-Thai Relations 1888 -1988. The Ba gkok Post Special Publications, September 30, 1988.In the Author's files."Smith supra in note 3 at 62.%Ibid38Portuguese, were establishing their enclave in Malacca, Ayuthayawas already a formidable military power controlling lands far tothe south on the Kra Isthmus. 57But Ayuthaya's days were numbered. By the mid-18th Century,endless changes of power and internal bickering had distracted therulers from the threat from Burma to the west. Relations with Burmahad always been difficult. Two centuries before, Burmese armies intheir conquest, as mentioned had destroyed most of the major citiesof Siam and occupied Ayuthaya itself, turning it into a vassalstate. The monarchy which had usually been a source of stabilitywas a source of turmoil during Ayuthaya's last two centuries. SomeKings lasted only months before a brother usurped them. 58 Even inthat tradition perhaps, today's coups and counter-coups may havetheir links.In 1763, after several years of turmoil, a rebel king inBurma succeeded in raising a large army and directed it north atChiang Mai. Within six months they had conquered the northerncapital re-directed their attentions south. Over the next fouryears, they consolidated their hold in the north. By 1766 they hadjoined other armies from Burma in the march on Ayuthaya itself. 59After a long siege, on April 7, 1767, the Burmese took thecapital and etched that date into the Thai psyche. Forhistorians it represents the end of an era in Siamese history. But57Wyatt, supra in note 7 at p. 6058Ibid59Keyes supra in note^at p. 39.39for the populace it was a bitter pill. The Burmese were notmerciful conquerors, destroying almost everything that a milleniumof Ayuthayan history had wrought. They removed gilded Buddhascarting them back to Burma on the backs of their elephants. Thosethey could not carry they destroyed. Vast libraries of ancientbooks and records were burned. Gold was peeled off the temples andpalaces filled with art were pillaged and burned."c. The Chakri Dynasty and the Growth of KingshipWhen Ayuthaya fell to the Burmese, the old state of Siam wasessentially without government. But their conquest and rapid exitdid lay the foundations for the next stage in Siam's history, theeventual emergence of a modern nation with Bangkok as its capital.After their heady victory and pillage, the Burmese found themselvesfacing Chinese armies on their northern borders. In their haste toreturn to Burma to defend their own homeland they quicklyrelinquished their conquests in Siam. In the vaccuum they leftbehind, anything could have been expected except what actuallyoccurred. mWithin a decade of the fall of its ancient capital, Siam was"Ibid. "I cry to think how much was destroyed of our history."said one student in Chulalongkorn University in Bangkok, recallingthe extent of the destruction. The Thai Ambassador to Canada,Chawat Arthayukti put it more diplomatically. "What happened inAyuthaya still remains in our hearts and minds. But we are in themodern age now and we must coexist with our neighbours." Interviewconducted in August, 1990 in Vancouver.61Ibid40again united. Out of the anarchy left in the conquerors' wakeemerged a half-Chinese governor from the north, who regrouped thescattered provinces vacated by the retreating Burmese armies. Thisgeneral's exploits in unifying the kingdom earned him wide supportand he was crowned monarch. 62Called King Taksin, he ruled for fifteen years and left twothings to the new regime. His armies succeeded in not only unitingall of Ayuthaya's former domains by 1776, but even in expandingthem. And he established a new capital further south at a site moreeasily defended only 20 miles from the sea. Called "Krung Thep" bythe Thais, or "City of Angels", it was to become known to theoutside world as Bangkok. 63Unfortunately his accomplishments went to the his head and hebegan seeing himself as a god, expecting others to treat himaccordingly. He threw his wife in jail along with his sons and hebegan to require that monks prostrate themselves before him. Aspowerful as he was, tampering with the religion of the state wastoo much. "In 1782, a rebel army marched on Bangkok and captured theking. They invited a leading noble, Chaophraya Chakri to accept thethrone . Invoking a little used law from Ayuthaya which hadestablished the methods for executing royalty, the new king hadKing Taksin tied up in a velvet sack and beaten to death with a62Ibid63IbidWyatt supra in note^at p. 67.41sandalwood club. 65Thus, began the Chakri Dynasty which continues to this day.The dynasty began with the reign of King Chakri, (Rama I) whooccupied the throne until 1809 and guided Siam into the 19thCentury. He moved the capital from Thonburi across the river, toBangkok. The new capital was only a few miles from the Gulf of Siamand more accessible as a port for trade and contact with theoutside world, than Ayuthaya had ever been. "By the end of Rama I's reign in 1809, Siam's borders extendedall the way to Vietnam and incorporated most of Laos and Cambodia.In the south, four northern Malay principalities had also beenabsorbed. There are Thai irredentists who even today suggest thatThailand's boundaries should include these conquests establishedunder Rama I. This has continued to affect Thai relations with itsneighbours and was the pretext for Thailand taking back these landsduring World War 11. 67But the nineteenth century was dominated by the advent ofEuropean colonialism in Southeast Asia. Although Siam was tosurvive as the only truly independent nation-state in the regionduring that century , its freedom cost it dearly. In 1785, theBritish had established a stronghold in Penang in Malaya. By 1800they had also taken some territory on the mainland opposite theisland. By 1819 with their trade to China blossoming and the65Ibid"Keyes supra in note^at p.40°Ibid.42rivalry with the Dutch in the East Indies growing, they establisheda free port in Singapore. During this period of expansion, theBritish were very aware of Siam's crucial position in the region.This was emphasized by Singapore's founder, Sir Thomas StamfordRaffles who said: "When it is considered that Siam extends itsinfluence over the whole Malay peninsula.... and this influenceprevails over states with which our unrestricted intercourse isindispensable, the advantage of a good understanding with thatcourt is obvious." 68The process of achieving that understanding was based largelyon a series of treaties Siam was coerced into signing over the nextcentury. It was at this juncture with the arrival of Europeancolonialism that the Siamese were exposed to their firstexperiences with Euro-centric international law. At first they gaveup little. In fact their trade benefited from the first treaty withthe British which recognised the border between Siam and Burma andformalised trading relationships."But the main treaty between the two States, the Bowring Treatynamed after the British envoy who engineered it, was signed onApril 18, 1855. As a result of its signing, Siamese ambassadorstravelled to London to open Siam's embassy in 1857. 7°This treaty marked a turning point in Siam's dealings with68Keyes supra in note 7 at p. 23169A.L.Mof fat, Mongkut. the King of Siam, (Ithaca, N.Y.: CornellUniv. Press, 1962) 41-4570Ibid. p. 49.43the West. When Prince Mongkut ascended the throne in 1851, as KingMongkut (Rama IV), the king inherited a kingdom surrounded byenemies. The European powers were establishing footholds throughoutSoutheast Asia, and every bit of his wisdom and education wastested during the 17 years he ruled to keep the sovereignty of hisrealm intact. flThe King's delicate manoeuvring and the deft negotiating ofterms in the treaties he signed with the Western powers set down astyle for Thai diplomacy which has been instructive to Thai leadersever since. While relinquishing some of Siam's sovereignty, KingMongkut was able to balance the Europeans off against each other,especially the British against the French. And in this way he keptthem at bay. An example of Siam's earliest involvement withinternational law occurred during this period of the Europeanstates demarcating their Asian possessions. After the Britishgained control of Burma, the Anglo-Siamese border commission wasestablished and Siamese rulers had to deal with established andinternationally recognized boundary lines, rather than thetraditional system where historic tribute was paid to the Siamesekings by vassals. 72King Mongkut was also forced to concede to the imposition ofextraterritoriality laws, which gave up Siam's legal jurisdictionover foreign subjects resident in the Kingdom. Treaties to thiseffect were signed first with the British and later with theflKeyes op.cit. supra at 45.nIbid. p.49.44French, the Americans and the Japanese. But he kept the kingdomessentially a unit and, above all, independent. 73Domestically, King Mongkut also saw the need to bringinformation about his government to the people. He sponsored thefirst government gazette in Siam and the printing of the laws whichhad been codified to that point. He also gave to the Kingdomperhaps his greatest gift, a son and heir, able to converse inEnglish. Called Chulalongkorn, he also became the first Thai kingto travel to Europe. While King Mongkut did much to preserve Siam'sindependence, his son, King Chulalongkorn faced the greatestchallenges to Siam's independence and persevered. 74The new King, (Rama V) faced the most direct confrontationwith a Western power of any Siamese king. In 1893 a crisis arosewith France over French incursions into Laos. In the confrontation,some French officers were killed in the Laotian capital. Franceused the incident as a pretext to send gunboats into the Gulf ofSiam and threaten the mouth of the Chao Phya River leading toBangkok. A Siamese fort at the entrance to the river, fired thefirst shots and after crossing the bar at the entrance to theriver, the French ships reached Bangkok and anchored outside theFrench Legation. A Siamese Prince demonstrated traditional Thaidiplomacy and congratulated the French commander on his daring. 75mIbid.74D.G.E.Hall, A History of Southeast Asia, (New York:Macmillan, 1968) 666-67875 b'I id. p. 69445But nevertheless, the Siamese government was presented with anultimatum which it had no choice but to accept. 76 This wasThailand's introduction to the international law of reprisal.The resulting territorial adjustments had finally placed theFrench possessions in Laos in direct contact with the British inBurma. This meant the two European powers had to agree to a sharedborder and in the process, they established legal recognition ofSiamese control over the rest of the territory between theirpossessions which amounted to de facto recognition of Siam'scontrol of the crucial Chao Phya River valley and the lands drainedby its tributaries. "This incident set the tone for the first decade in thetwentieth century. Siam was forced to cede more territory to theFrench, namely three more provinces in Cambodia through a treaty in1907 and the British acquired four more Malay states and theexclusive right to build a railway down the peninsula linkingBangkok with Singapore. 78 These treaties would come up later in acase that modern day Thailand had to defend in the InternationalCourt.But as it turned out, these would be the last chunks of itsterritory, Siam would be forced to relinquish. The previous centuryhad seen it forced to give up almost half its territory in order topreserve its freedom.mIbid."Ibid, pp 679-70178Ibid. p.700.46d. Prelude to Change: Thai Nationalism and the steps leading to theCoup in 1932 King Chulalongkorn's son, Vajiravudh, ( Rama VI) is often saidto be the father of Thai nationalism. During his reign, Buddhismalong with the monarchy and the people ( the Thai nation) wereproclaimed the " three pillars of Thai nationalim". 79 The Kingwho had been educated in England, preferred art to politics. Henever took a wife until late in his reign and ironically, in spiteof his efforts to foster Thai nationalism and build up Siam'smilitary, his excesses, it has been said, sparked the firstquestioning of Siam's system of absolute monarchy. 8°After World War I, in which Siam participated with allied theforces, Siam began slowly extricating itself from the onerousextraterritoriality laws that had been imposed in the previouscentury. It became a member of the League of Nations along withother Asian nations such as Japan, India, Persia and China. Butunlike the other Asian states, Siam did not have to to endurefurther European incursions on its sovereignty. But in the Leagueas in its foreign relations generally, Siam did not easily forgetthe lessons of the recent past and continued to negotiate along adiplomatic tightrope. mThe first three decades of the twentieth century set in motion79Keyes op. cit. supra at p. 59.p. 60-61.MSee M. Matsushita, Japan in the League of Nations,  (NewYork: AMS Press, 1968) regarding Siam's position of abstention onany issue which might alienate the French.47the steps to Siam's modernisation. One step was the promotion ofeducation. And the coup-makers who ultimately rose on June 24, 1932were among the young men sent abroad to be educated in the West.When they returned, they saw Siam as still backward and some ofthem became determined to bring the Kingdom more emphatically intothe modern world. 82Among these young thinkers were two fed on the radicalism ofParis in the mid-1920's. Luang Pridi Banomyong was a law studentworking on codifying Siamese law. Another, Luang Pibul Songkhramwas a young military officer. When they returned to Siam, they veryquickly saw how much reform was needed and they began musteringsupport to challenge the absolute monarchy which they diagnosed asthe main reason for the Kingdom's backwardness. °In 1930, Siam's economy was devastated by the grave economiccrisis brought on by the worldwide depression. Rice had plummetedin price and because it was its principal export, Siam's economywas thrown into chaos. By 1932, even the peasants in the ruralareas, who were normally the traditional supporters of themonarchy, were becoming increasingly restive. In Bangkok, fermentand rumours were on the rise as the aristocracy's lavish lifestylestood in stark contrast to the escalating deprivation of thegeneral population. 8482J.A. Stowe, Siam becomes Thailand: A Story of Intrigue, (London: Hurst & Co., 1991) 9.°Ibid. pp. 10 - 22.84Keyes op. cit. supra at 6348e. The 1932 Coup and the End of Absolute MonarchyOn June 23, 1932, the coup promoters from the civil serviceand the military gathered while the king was at his summer palacein Hua Hin, south of Bangkok. They rallied enough troops to theircause to cut the telephone lines to houses and offices of theking's royal advisers. Early on June 24th, several advisers andmembers of the royal family were arrested and the coup promotersproclaimed a constitutional monarchy. King Prajadihok, (Rama VII)accepted the proclamation two days later, becoming Siam's firstconstitutional monarch. 85If any one institution of Thai society can be said to dominatethe next period in Thailand's history, it is the military. Thearmed forces had an important role to play throughout Siamesehistory, which not only involved matters of defense, but politicsas well. The military hierarchy were extremely important sociallyin Siam, a fact of life it had inherited from Ayuthaya. 86Therefore, it was no coincidence that the coup in 1932 wasled by commoners of military background. They rose after a longhistory of Siamese military development. The military was thefavored occupation for royal princes. The strict definition ofplace in the Thai social hierarchy conformed well to the uniformsand ranks. 87f. The 1930's 85Ibid. p. 63.86Ibid. p. 66"Ibid. p. 6849After the coup in 1932, successive regimes followed inturbulent succession in Siam while the world moved inexorably towar. In 1933, Colonel Phibun Songkhram, one of the original coup-leaders led government troops in putting down a rebellion led by aroyal prince. The distrust of the monarchy that he fomented,prompted King Prajadihok to leave for Britain, ostensibly to seekmedical treatment. He never returned. In 1935 the king abdicatedand the government invited ten year-old Prince Ananda Mahidol, thenephew of the old King to take the throne. But the young king'smother preferred that he continue his schooling in Switzerland anda Regent was appointed in Siam. mThroughout this decade, the military not only grew inimportance but began to take a greater portion of the nationalbudget. Paralleling the rise in military preoccupations arose afascination with Germany, Italy and Japan. And this provoked thegovernment to stimulate a sense of Thai nationalism which wasinevitably directed both internally and externally. By 1938, theSiamese government through the demise of various other factions,was firmly in the hands of the faction dominated by Luang PibulSongkhram. Wyatt describes the Pibul period as follows:" Luang Pibun Songkhram is one of only handful of peoplewho definitely put their stamp on Thai history. His firstgovernment which ran from the end of 1938 to mid-1944 wasa period thoroughly shaped by his power and personality ./much as absolute kings had done a generation earlier." 59Stowe, op.cit. supra at p. 84.89Wyatt, supra in note 7 at p. 24550But Pibun through the cult of the leader had a differentimage he wanted to cultivate. As Keyes maintained:Even before he became prime minister, Phibun and hisfollowers had begun to be influenced by theultranationalism rampant in Europe and especially inJapan. He favored the idea that the country needed aleader (phunam) who would not be like the kings of oldbut would be articulate, authoritative, and able toembody the aspirations of the nation. Phibun saw himselfas such a leader, one who would unite all Thai.""In the thirties, Luang Pibul made no secret of hisadmiration for Mussolini and Hitler. In 1939, he instituted a namechange for Siam, arguing that the old name was given by outsidepowers like China. The nation deserved a new name, one whichincidentally linked the country to the Tai peoples, many of whomresided outside the boundaries of the Kingdom. And so, Siam becameThailand,(Muang Thai), the Land of the Free. 91He also raised the banner of nation against the powerfulChinese minority. In a speech, one of his ministers compared themto the Jews in Europe and suggested that Hitler's policies againstthe Jews might be applicable to the Chinese in Thailand. Pibul didin fact set in place several anti-Chinese policies. Statemonopolies were formed to compete in trading tobacco and othercommodities with the powerful Chinese merchant class. Revenue taxeswere increased which had impact on the Chinese commercial class."Keyes, supra in note 2 at p.6691Stowe, op.cit. supra at p. 122.51Non-citizens were barred from engaging in numerous occupations.Chinese schools were required to curtail their instruction inChinese language to two hours per week. 92g. The War with French Indochina and World War II (1940-45) In June 1940, France fell to Hitler's armies. The woundssuffered by the Thais, at the hands of the French less than fiftyyears before still festered. Not only that but the Japanese in1940, with the agreement of Vichy France, had moved into Indochinaand established air bases near Saigon. Anticipating that they mightbe locked out of regaining territories they had lost in Laos andCambodia, Pibul after long negotiations with the French, moved Thaiarmies in and took the disputed provinces by force in November,1940. °For several months, battles raged, the Thais doing well onland but losing their fledgling navy's flagship in the sea war.Eventually, in April 1941, an agreement mediated by the Japaneseformally recognised Thai annexation of most of the disputedprovinces. 94But it was to prove a pyrrhic victory. By August 1941,Thailand watched helplessly as Japanese divisions moved into theeastern half of Cambodia, barely a day's march from Bangkok. Inspite of a call by Premier Pibul for national mass resistance inthe event of invasion, few believed Thailand could hold its own ifp. 132-33.93Keyes, op.cit. supra. at p. 69.64Stowe, op.cit. supra at pp. 143-78.52the Japanese did choose to invade. Britain was too preoccupiedfighting in Europe to offer any effective help. And the Americanssuddenly recognised how precarious they were in the Philippines."In the early hours of December 8th, 1941 after the JapaneseAmbassador delivered an ultimatum to the Thai Government asking forright of passage for Japanese troops on their march into Malaya,the Japanese invasion of Thailand began. Scattered Thai units alongthe Gulf coast fought throughout the night and early morning. Butby dawn Premier Pibul, realizing that to continue the fight wouldamount to national suicide, called a ceasefire. 96In the first few months of the Pacific War the West'spossessions in Asia fall like dominoes before the Japanese armies.The Pibul government pragmatic and to some observers unprincipled,entered into a military alliance with Japan. Pibul issued formaldeclarations of war against the United States and Great Britain inearly 1942. Thai armies moved into territories in the Shan statesin northern Burma. And the sultanates in northern Malaya were takenback. For a brief time, Thailand had regained most of theterritories that Siam had been forced to sacrifice to the colonialpowers in the previous century. 97During the first three years of the war, Thailand remainedrelatively untouched. The Japanese constructed their infamous"Death Railway" from Bangkok, through Three Pagodas Pass into"Keyes, op.cit. supra, at p.70."Ibid."Ibid.53Burma. There were a few bomber attacks on Bangkok which the Britishflew from India. But for the most part, Thailand came through thewar unscathed, its economy and infrastructure almost completelyintact. 98By 1945, the Thais, behind the backs of the occupyingJapanese, began to make secret overtures to Britain and America tosoften the results of an allied victory. Because the ThaiAmbassador to Washington, Seni Pramoj had never delivered thedeclaration of war to the US government and had sponsored a FreeThai movement based in the United States, the Thais were able tofind some success in their efforts with the Americans."After the war these contacts with the Americans signalled thecommencement of the most pivotal relationship in post-war Thaiforeign relations. The U.S. interceded on Thailand's behalf withthe British and the French after the war in their negotiations oftheir postwar demands for the return of territories in Burma,Malaya and Indochina. Keyes described this sudden friendship as"...one that would lead to marked changes in Thai society from themid-1950's through the mid-1970's.h. The Post-War Readjustments: 1945-50 Immediately after the war, Seni Pramoj, the Thai Ambassador toWashington who had so adroitly refused to deliver Thailand'sdeclaration of war, was appointed Prime Minister in order to assist"Ibid. p. 71."Ibid.°Keyes, op.cit. supra at 71.54Thailand's negotiations with the allied victors. In January, 1946,an election was held which resulted in the civilian, PridiBanomyong, one of the coup leaders of 1932, being elected Premier.While this suggested a new period of democracy had arrived, the newgovernment faced an epidemic of infighting between the variousmilitary factions jockeying for power. 101In the euphoric aftermath of the war, the Kingdom had joyfullywelcomed back home King Ananda Mahidol from Switzerland. The youngking seemed to embody the national mood to put the war and thesorry past behind. But this renewal was derailed when the youngKing was found shot in his bed on June 9, 1946, only six monthsafter his return. At first his death was termed an accident butlater called murder. Government heads rolled because of the tragedy(three officials were executed)." 2The resulting controversy over the circumstances of thedeath, never really settled down until long after King Ananda'sbrother, King Bhumipol Adulyadej, (the current king, Rama IX)ascended the throne. But rumours were whispered around Bangkok, bycertain factions regarding the role of Premier Pridi in the King'sdeath. This campaign did much to create the confused environmentperfect for a coup which occurred on November 8, 1947. Theinstigators were primarily forces from the military, who chafed atthe tarnished image of the military after the war. With the gloriesthey had reaped for Thailand against the French in Indochina and1°1 Ibid.1132Ibid. P. 7255elsewhere still fresh in their memories, they wanted more power andprestige. 103Keyes described this coup as follows:The 1947 coup marked the beginning of a period in whichthe Thai military and more specifically, the army,assumed the role determining the character of thegovernments that rule Thailand, even to the present day.Although the military had been involved in the 1932Revolution and military men, mostly Phibun, hadparticipated in the governments between 1932 and 1947,the role played by the military had been a supportingrather than a preeminient one. The coup of 1947 changedthe parameters of Thai political life.'"D. The Evolution of the Thai Legal System and Attitudes to LawIn reviewing the development of Thai law since the turn of thecentury two motives of the early law reformers of Siam must berecognized. First of all, they saw that the new Siamese legalsystem while drawing its sources from the traditional laworiginating in Ayuthaya, had to provide the basis for themodernization of the nation-state. Therefore their reforms followeda European (French) codified model. 105 The second factor to beborne in mind was the effort of Thai law-makers to create a systemwhich would be legitimate in the eyes of Europeans, specifically,to rid the Thai legal system of any vestige from the past whichwould allow Europeans an excuse for prolonging the hatedp. 72.10514.B.Hooker, A Concise Legal History of South-East Asia,(Oxford: Clarendon Press, 1978), p.183.56extraterritorial legal regime. 106To satisfy these two motives, the French Civil Codes wereemployed and rewoven to conform to Siam's requirements. Thisprocess was assisted by French and Belgian legal advisors. 107 Inthe reign of King Chulalongkorn, (1868-1910), the first SiameseCodes were produced. In 1908, a law instituting the Courts ofJustice was passed and this was quickly followed by the Code ofCivil Procedure and the Criminal Code, all promulgated that year.In outlining the reasons for these changes, the King cited theexample of Japan which had also used the services of foreignadvisors to assist in the drafting of new laws. 108The Criminal Code incorporated many European legal concepts:sentencing was conditional similar to French and Belgian law;recidivism was redefined according to the European codes;punishment was reformed maximum and minimum terms to reflect theseverity of offenses.The Code of Civil Procedure and the Law of the Courts ofJustice established a judicial hierarchy directly responsible tothe Minister of Justice who was in turn responsible to the King.The Minister was responsible for appointing all judges throughoutthe courts. These judges did not refer to the traditional law orThammasat, the laws of the moral universe upon which the rules of106M.B.Hooker, Legal Pluralism: An Introduction to Colonial andNeo-Colonial Laws, (Oxford: Clarendon Press, 1975), p.381-82.107Hooker, A Concise History, op.cit."8Ibid. p. 184.57old Siam had been based, and which the Europeans regarded as anexcuse for the imposition of extraterritoriality on Siam. 109Judges in the new system based their decisions on the public law ascodified, which was linked to the newly instituted ideas of statesovereignty .110Gradually the codification of the public law through theabovementioned codes, was extended to private law through thepromulgation of the Civil and Commercial Code in 1935. 111 The mainstumbling block to this codification was the law on marriage.Traditional Siamese law, long criticized by the missionaries asbeing immoral, allowed polygamy. The debate over what to do aboutthis went on for several decades until 1935, when the new Codeprohibited any form of marriage except monogamy. 112 While the newlaw still supported the husband's paramountcy especially in givinghim control of the property of the marriage, it sanctioned divorceby mutual consent. 113In relation to land law, a system of certificates of ownershipstretching back to Ayuthaya was in effect at the turn of thecentury. The certificates were issued more for the purposes ofassessing land taxes but they did establish land title to the"'Ibid.1"Ibid.1"Ibid.112Hooker, Legal Pluralism, op cit at p. 382.113Ibid.58owners based on occupancy and cultivation. 114 In 1901, KingChulalongkorn issued a decree requiring the registration of allland titles and effectively enshrined into law a distinctionbetween mere occupancy and ownership. 115 This situation wasfurther formalized in the Civil and Commercial Code in 1935, whichset out the procedures for passing and transfering rights inland. 116 Several changes to this Code were enacted in the next twodecades culminating in the Land Code passed in 1954, which extendedland rights to all people, limited the rights of aliens to landownership, and established a table of fees for land use. 117 Thepower to adjudicate in disputes over land ownership was given tothe Provincial Governors who were governed by regulations attachedto the Code. While all of these efforts to make the law clearerwere fruitful, there is still some confusion over the effectivenessof traditional titles to land. Also the rural population is stillvery ignorant of its rights under Thai land laws. 118One holdover from traditional times, is squatter's rights,dating from the old days when an occupier of unoccupied or unusedland could through occupation claim title. This was even put intothe Land Code. An individual can give notice of the intention tooccupy unused land and receive a license to occupy and cultivate.114Ibid. p. 384.1"Ibid.116Ibid. p. 385.1"Ibid.1"Ibid.59After three years, the occupancy will be certified. This allowancehas opened up the system to much abuse and squatters frequentlyoccupy land without observing the legislated formalities. 119All of the law reforms cited above can be said to have beenprompted by the process of induction Siam was undergoing, into theworld community. The Siamese government at the time of itsemergence as a modern nation-state into the community of nations,needed at least to appear to be modern. The other theme of thislegal reformation was to promote national unity. As Hookersummarized the process:"The entry of Thailand into the world community whichthis implied was accompanied by new concepts of law outof which grew the present amalgam of substantivetraditional law and Western legal administration. Thesignificant change in the land administration was theintroduction of a title deed system as a result of whichrights to land have come to depend upon the deed andendorsements therein.119Ibid. p. 388.p. 389.CHAPTER THREETHE EXTERNAL FACTORS: THEIR INFLUENCE ON THAILAND'S NATIONAL BEHAVIOURI. IntroductionThe period since the last war and the coup of 1947, spanningalmost five decades, has seen Thailand develop what has beencalled, the Thai form of democracy. While the recent history ofThailand continues to be dominated by the military, many of theinstitutions stretching back to Ayuthaya and old Siam, the monarchyand the bureaucracy for example, continue to play crucial roles inmaintaining Thailand's stability. The Kingdom has changedenormously in the decades since the war but much of its currentsuccess can be attributed to its strong sense of nationhood and agreater sense of its own security . These themes plus others willbe explored in this chapter which reviews Thailand's perspectiveson foreign relations and how they have figured in its involvementwith international organisations and the development ofinternational law.Prior to proceeding through a history of international6061politics in the Post War era and a description of the context inwhich certain questions involving Thailand and international lawhave occurred, it is necessary to retrieve some threads from thelegacy of foreign relations Thailand inherited from the old Kingdomof Siam which was reviewed in the last chapter.If any one international legal term has significance forThais, in the modern era it is extraterritoriality. It still hauntsthe Thai memory and will on occasion enter Thai rhetoric. AsSantaputra wrote:[It] was the price Siam had to pay in exchange for herpreservation of independence during the nineteenthcentury. Foreseeing the threat to survival of the nationfrom the imperialistic policy of Britain and France, in1855, Rama IV agreed to an unequal treaty with QueenVictoria's emissary Sir John Bowring. This treaty createdthe right of extraterritoriality for British nationals inSiam. They were thus freed from the jurisdiction of theSiamese courts. Siamese autonomy in imposing tariffs wasalso curtailed. Provision for the unequal right ofextraterritoriality was followed in treaties made with 12other powers of the day. 121The special courts set up to deal with matters involvingforeign nationals were still in operation in 1939, and Britishjurists were still operating in Siam, almost a century after theBowring Treaty was signed. 122Extraterritoriality gave to the nations of the West and Japanthe right to withdraw any case involving their nationals or thenationals of one of the countries which were their protectorates or121C. Santaputra, Thai Foreign Policy: 1932 - 46, (Master'sThesis), (Bangkok: Thai Khadi Research Institute, 1985), p. 84.122Ibid.62colonies. 123 If a matter arose in Siam's provinces they couldapply to have it moved to Bangkok. They had the right to have theirown legal advisors present and any matter could be appealed toSiam's highest court. It also imposed on Siam, British law ofproperty and testacy in British cases in the absence of Siamese lawin those areas. 124 When Siam was among the victors after World WarI, at the Treaty of Versailles in 1918, its negotiators began theprocess of extricating the Kingdom from this imperialisticyoke. The United States was the first to abandonextraterritoriality in Siam in 1926. American advisors in theSiamese Foreign Ministry assisted it in drafting treaties with allthe other powers based on national equality. U5 Treaties with theother powers followed throughout the 1920's and 1930's. Perhaps themost significant of these, especially in light of its currentpreoccupation with events in Indochina, were the treaties it signedwith France to legitimize its frontiers with Laos and Cambodia. 126Between 1867 and 1907, Siam lost 467,500 square kilometers oftraditional territories to France. These areas of Laos and Cambodiahad a population of 4 million at the time. 127 The final Franco-Siamese treaty in 1937 was the last before Thailand eventually,unilaterally abrogated that treaty and marched into Cambodia in123Ibid. P• 85.124Ibid.125Ibid.126Ibid . P• 27.127Ibid. P• 97.631940. 128II. Themes that have Emerged from the History of Thai ForeignPolicyA. Foreign Policy and the Military-Bureaucratic EliteIn the Thai bureaucracy, the officials and lawyers responsiblefor determining Thailand's stance on issues involving diplomacy,foreign relations and international law reside in the ForeignMinistry. 129 But most observers of the Thai scene see the militarydecision-makers who have dominated the governments since World WarII, as the key personalities determining Thailand's policies. Theirdominance, in spite of the weight given to the influence of high-ranking officials in the Foreign Ministry, can be explained by theposition foreign policy has had in legitimizing and justifying themilitary regime of the moment. In other words, the military is bydefinition supposed to be primarily involved in defending thenation. This means presumably against external enemies. Thereforethe predominance of the military in forming Thai foreign policy canbe explained by seeing Thai government, even today as defined by:the nature of the regime and how it came to power (i.e. mostcommonly by coup d'etat); the dependence on the leader which allows128Ibid. p. 98.129C. Phuangkasem, Thailand's Foreign Relations: 1964-80,Singapore: Institute of Southeast Asian Studies, 1984. 11.64his personality and biases to be incorporated into foreign policyand therefore responses to issues involving international law; thenature of Thai culture with its hierarchical structure and elite-based politics which permits only a few individuals with littleappearance of consultation to make policy. umB. External DeterminantsExternal determinants of national behaviour are those factorswhich are outside a nation's control. Phuangkasem in her analysisof Thailand's foreign relations, lists the following externalfactors which have influenced and continue to influence Thailand'sforeign relations. They also affect its involvement ininternational organisations and law. First of all she observed thatThailand like other states is very much affected by events in thenations with which it shares borders. Second the geographicdistance Thailand is from the nearest major power must beconsidered. Third, membership in ideological and regional blocs hasvery much had its effect on Thailand's foreign relations and thestance it has taken on international law. Fourth, Thailand'sdependence on foreign aid and how much it is receiving relative tothe Gross Domestic Product is a factor to be considered. Itsbalance of trade is the fifth consideration. She also cites factorssuch as the number of college students studying abroad, thenation's ranking in the world in terms of economic development and13°C. Phuangkasem, op.cit. p. 11.65power. 131Because Thailand is a small power with limited resources, itsimpact is very much restricted to the region where it is located.The countries that have had the most influence on it historically,have been its neighbours, Burma, Laos, Cambodia and Vietnam.Vietnam and Siam traditionally were rivals in Laos and Cambodia.When the Europeans arrived on the scene, they merely moved in andreplaced the local rulers as the prime powers affecting Siameseaffairs. But they did not change the need for the rulers of Siam tokeep constantly vigilant of the situation on its borders. 132Thailand's first exposure to international law and treaty-making came over having the boundaries between its neighbours anditself demarcated in boundary treaties signed with the Europeans.Siam's historic preoccupation with the situation in Burma, Laos,Cambodia and to a lesser extent, Vietnam and the Malay statescontinues to dominate Thai foreign policy today. Most of the majorissues involving international law which will be discussed in thischapter have involved its position in the region and regionalsecurity. Even its involvement with international human rights lawhas arisen mainly because of the situation in the adjoiningnations, involving refugees from Indochina, and hill tribesspilling over from Burma.131C. Phuangkasem, Determinants of Thailand's Foreign PolicyBehaviour  , Bangkok: Thammasat University Press, 1984. p.39.132M. Alagappa, "The Dynamics of International Security inSoutheast Asia: Change and Continuity," Australian Journal of International Affairs, 45:1(May 1991), 13-14.66As for the distance Thailand is from major powersgeographically, the major power closest to it geographically is thePeople's Republic of China. The other major power that has figuredin its post-war relations is the United States. For the first threedecades after the war, Thailand's geographic proximity to the PRCand its reaction to conditions in the PRC and its foreign policieswere cushioned by its strong relationship and military alliancewith the Americans. But in the mid-1970's when America's will tocontinue its high profile in Southeast Asia diminished and it wasperceived as retreating, Thailand did a swift volte-face and beganspeedily repairing its relations with China. This process hascontinued until today: the two nations are so close, theirrelationship causes Thailand's ASEAN partners some degree ofanxiety. 133 Thailand was also one of the few nations in SoutheastAsia that did not condemn the killing in Tiananmen in 1989. 134For all of its post-war history, Thailand's relations with theoutside world have been governed by its membership in regional andideological blocs. Regionally, through its membership in the SouthEast Asian Treaty Organization, it not only joined with other pro-Western Southeast Asian nations in a security alliance but did sofirmly allied to the anti-communist American and pro-Western camp.This position was consistent with the wishes of its militaryleadership which has been the most strongly pro-American force in133"Sino-Thai ties boosed by President's visit," Far EasternEconomic Review, (June 27, 1991), 22.134Ibid.67Thai politics. Because the Thai military has depended on Americanmilitary aid since the late-1940's to build itself up, it has neverwaivered from its commitment to the American cause. The first US-Thailand military assistance agreement was signed on October 17th,1950 and was extended every few years. This friendship colouredThailand's foreign relations right up to the mid-1970's andaffected its stance on numerous bloc-oriented issues before theUnited Nations. 135When its alliance with the United States became less importantto it in terms of regional security, Thailand became an activemember of the Association of South East Asian Nations (ASEAN), toensure that it became a strong and effective counterweight toChinese, Soviet and even American influence in the region. Thailandhas never been seen as a committed team player historically. Butsince it joined ASEAN in 1967, its foreign policy decisions and itsposition in the United Nations, or in international conferenceslike those involving the law of the sea, do reflect its concernwith the positions of its partners in ASEAN.The last two factors which have influenced Thai foreignrelations and its involvement with international organisations areeconomic determinants. First because of its position as a recipientof foreign aid from the United States and Japan, it has consciouslytailored its foreign relations to be as palatable as possible tothese two nations. But as the amount of foreign aid relative to its135See UN Yearbooks 1950-1975 on General Assembly votes onideological issues such as China's seat in the UN, voted with theWestern bloc.68Gross Domestic Product has declined, Thailand has been able tosteer a more independent line in its relations with both the UnitedStates and Japan. Through the 1980's this greater independence wasreflected in Thai reactions to American actions like the bombing ofLibya.As for foreign trade, because of the rapid growth in itseconomy during the 1980's, Thailand has become a much moreimportant player economically on the world stage. While still aminor economic power, its economic growth has moved it close to theranks of the Newly Industrializing Countries, Singapore, Hong Kong,Taiwan and South Korea. This new sense of economic security hasbeen translated into greater confidence in its foreign relationsbut at the same time Thailand is very conscious of arranging itsforeign relations to be consistent with its new dependence onstrong trading relations with the ASEAN countries, North America,Europe, and Japan.International law and organisations have some role in thisprocess. The Law of the Sea Conferences have resulted in law whichwill be discussed in greater detail in Chapter 5, with enormousconsequences for Thailand's fishing sector. The areas of the Gulfwhere it has sunk wells and now pumps natural gas into a nationwidepipeline grid border zones claimed by the Indochinese states andMalaysia. As for its trading relationships, it has acceded to theGeneralised Agreement on Tariffs and Trade and been under pressurefrom the United States to bring its intellectual propertylegislation into conformity with international law on intellectual69property . 136III. Post-War Relations. Treaties and International LawA. Aftermath of War (1945 - 50) The period immediately following World War II, found Thailandstill the only sovereign nation in a region to which the colonialpowers wanted to return and reclaim their possessions. In the firstyear, 1945-46, as described in the preceding chapter, Thailand tookadvantage of the goodwill it had with the United States, andsuccessfully negotiated peace treaties with the British and Frenchwhich among other things, forced it to relinquish the territoriesit had occupied in Burma and Indochina. In fact the treaty Thailandsigned with the British and India on January 1, 1946 was the firstpeace treaty any enemy state signed with the allies. 137The treaty was also the first act involving international lawwhich Thailand performed after the war, in order to begin theprocess of regaining its legitimacy in the world community. In thetreaty, Thailand agreed to nullify all territories it had taken136Brief presented to the US Trade Representative in Washingtonas published in the Bangkok Post, June 7, 1987 on Patents forPharmaceuticals and Protection of Intellectual Property in Thailandas presented by the Foreign Pharmaceutical Manufacturer'sAssociation. In the author's files.137Treaties and Alliances of the World, (New York: CharlesScribner's & Sons, 1974), p. 7._70during the war. It provided for Thai collaboration in whateverUnited Nations post-war security arrangements were to be arrangedfor the region. It provided for the restoration of diplomatic,economic and commercial relations between Thailand, Britain andIndia. And Thailand also promised not to construct a canal acrossthe Kra Isthmus without British consent.""For a short year, Prime Minister Pridi Banomyong ruled thenation, installed by the allies after his success leading the FreeThai movement. But his regime was short-lived largely destroyed bythe death of King Ananda as discussed in Chapter Two. In 1946,Thailand by legalizing the Communist Party of Thailand, overrodethe possible veto of the Soviet Union in the United Nations (UN)Security Council and joined the UN on December 16th, 1946. 139 Itbegan in that year to enter the various special organisations ofthe United Nations which have become extremely important to itsdevelopment in the last fifty years.Reviewing the first years of Thailand's involvement in theUnited Nations and its enlightened support of such progressivedocuments as the Universal Declaration of Human Rights seems ironicin light of the regressive nature of its domestic politics.In 1947, the key player on the home front was Pibul Songhkramwho re-emerged after the war and dominated Thai politics until1951.B. A Decade of Anti-Communism (1950-60) 138Ibid.1391UN Yearbook, 1953.71Two personalities emerged in the post-1951 scene, afterPremier Pibul's demise. General Sarit Thanarat of the army andGeneral Phao Sriyanonda of the police were able to dominate Thaipolitics for most of the 1950's because of United States financialsupport and their own efficient systems of corruption which ensuredthat their factions remained loyal. mIt is this last point which seems most significant. By theearly 1950's corrupt military and police generals dominatedThailand's internal politics. And the United States through theU.S. Central Intelligence Agency was their main benefactor. 141This mix, of rightist, strongly anti-communist military leaders andan alliance with the United States brought Thailand like manycountries in the region, in line with long term U.S. foreign policystrategy to contain the perceived threat to the region from thePeople's Republic of China.When Mao's armies moved south in China and drove remnants ofthe Kuomintang (KMT) into Burma, and Laos in 1949, the TrumanAdministration reacted in panic. While the Thai political scene hadits usual ups and downs during this period, they were almostsecondary to the national interests of the U.S. in the region. Forthe next twenty years American military aid and financialmanipulation in Thailand did much to influence both its internal140A. McCoy et al, The Politics of Heroin in Southeast Asia,(New York: Harper & Row, 1972) 158.14 1 Ibid.72politics and its foreign relations. 142The 1950's saw not only forces from the KMT enter thenorthern hills of Thailand, but fighting between the French and theViet Minh forces in Vietnam spilled over the border and caused thefirst influx of refugees into Thailand from Vietnam. Even to thisday, remnants of this population reside in Thailand's northeast.143 In addition to its proximity to the growing insurgency againstthe French in Indochina, Thailand saw itself as a strong ally ofthe United States and a member of the UN, forced to get involved inthe Korean conflict. Thailand was one of 15 members of the UN whichsent forces to Korea. 144In 1954, Thailand lodged a complaint in the UN regardingthreats to its national security posed by fighting in an unnamedcountry on its borders. The Soviet Union objected to the matterbeing brought to the Security Council since the Indochinesequestion was being negotiated in Geneva between the Vietnamese andthe French. The Soviets also maintained that Thailand was merelyacting as a proxy for the U.S. and the U.S. wanted to sabotage thenegotiations in Geneva. 145 The Thais in their complaint to theUN, outlined how Viet Minh forces had invaded Laos and Cambodia andhad escalated their charges that Thailand was sending forces into1421bid143See Chapter Four, section on Refugees and Thailand'sresponse.144UN Yearbook, New York: United Nations, 1954.146UN Yearbook, (New York: United Nations, 1954)73the two countries as well. Thailand requested that the UN send aPeace Observation Commission to the border areas but the SovietUnion vetoed the request.'"On questions such as this, involving Thailand against Sovietinterests, Thailand stood firmly in the Western camp. It voted, forexample with the Western bloc of 50 nations in the UN on adoptingthe Korean Armistice Agreement. But on issues which involved self-determination of peoples, it sided with the Third World and theSoviet bloc. For example, in a vote to bring the Netherlands andIndonesia to the bargaining table to resolve their dispute overIrian Jaya, Thailand sided with the Third World bloc. In 1954, itstood among the Third World nations against France and the West tobring the question of Moroccan independence before the GeneralAssembly. 147 On questions regarding apartheid and South WestAfrica it also stood with the Third World, against the West.'"This pattern continued through the 1950's. Where issues wereclearly defined as East - West issues, issues of security andideology, like Korea, Vietnam, or the seat for China in the UN,Thailand came down firmly in the Western camp. But on issuesinvolving colonialism and self-determination, it stood with theThird World. It also emulated the Third World in its reactions toemerging international covenants on human rights. For example itstood with the Islamic countries in abstaining on the Draft146ibid147U.N. Yearbook, (New York: United Nations, 1954)148UN Yearbook, 1955, (New York: United Nations, 1955). p. 158.74Convention on the Status of Nationality of Married Women. 149 Italso abstained on a vote to reconstitute the United Nations RefugeeFund .150Late in the 1950's, Thailand began to lodge complaints at theUN regarding the border situation with Cambodia. Or Cambodia wouldlodge complaints about Thai incursions in its border region. Thesecharges and counter-charges escalated in intensity until November29, 1958, Cambodia broke diplomatic relations with Thailand. Atthis time the Temple of Preah Vihear began to appear in thecontroversy. The Cambodians charged that while the Temple stood onCambodian soil, as confirmed by the treaties Siam had signed withthe French, Thailand had stationed troops at the Temple whichamounted to its de facto annexation of the Temple. 151 TheSecretary-General sent Swedish Ambassador Johan Beck-Friis as hisrepresentative to observe the border and make a report. 152These charges and counter-charges continued throughout 1958and culminated in 1959, with the Cambodians filing in the Registryof the International Court of Justice, an application institutingproceedings against Thailand. The Cambodian application stated thatsince 1949, Thailand had occupied the site of the temple and since1954, stationed paramilitary forces there. 153149Ibid.mIbid.1511UN Yearbook, 1958, (New York: United Nations, 1958) p. 94.152Ibid.153I.C.J. Reports, (The Hague, 1959), p. 286.752. Regional Security : the Unsettled Decade (1960-70) a. The Temple of Preah Vihear Case: Cambodia v. Thailand inthe International Court of Justice. This case crystallized in a single suit before theInternational Court of Justice (ICJ) all of the key elements of theThai perspective on International Law. At the time that the casearose in 1959, Thailand was ruled by a strong military governmentsupported by infusions of money from the United States. It wasallied with the anti-communist government in South Vietnam whichwas fighting a growing insurgency against the Viet Cong, andThailand, too, was facing its own Communist Party of Thailandinsurgents although on a much smaller scale than in Vietnam.Although the case was initiated by Cambodia, the Thai militaryelite wanted the case before the ICJ to vindicate their claim tothe Temple. For them it was a matter of historic pride and nationaldignity.The case also illustrated how domestic and internationalpolitics coalesced in influencing Thailand's stance on the issuesbefore the ICJ, where the international law involved was not forthe Thais the priority. It was a matter of national dignity.Underneath those motives, lay the sovereignty issue over a Templewhich for the Thais suddenly symbolized all that it had lost to theimperialists in the previous century.As already mentioned, the Cambodians began to complain in thelate 1950's about Thai moves in the area around the temple. It76should not be forgotten that Thailand was brought for the firsttime to the ICJ, not by a Western power, but by a smaller, weakerThird World state that was traditionally regarded by them as avassal to the Kings of Siam. And it had only gained itsindependence from France in 1953. 154 For the status consciousThais their cultural reaction to this upstart nation challengingthem before the world was doubly galling.The Temple of Preah Vihear involved the terms of a treatybetween France and Siam, of 1904 with a subsequent Mixed Commissionset up to survey the border and produce maps which were completedin 1907. 155 It stood on a promontory overlooking the plains ofCambodia. Because it stood on the edge of an escarpment, it wasreached up stairs which rose gradually from the north on the Thaiside. The edge of the escarpment on what the Thais claimed was theCambodian side formed a cliff face which plummeted down to theplains below. There is little doubt from descriptions of the sitebefore the Court and the fact that the Mixed Commission of 1907,was supposed to draw the frontier to follow the watershed line,that the natural configuration of the escarpment did place theTemple on its north, and therefore, Thai side. But the argumentsturned on law and the interpretation of the wording of the treatiessigned in 1904 and 1907. 156154P.C.Jessup, The Price of International Justice, (New York:Columbia Univ. Press, 1971), p.14.155Ibid.156Ibid.77The Court described the facts of the case as follows:In the present case, Cambodia alleges a violation on thepart of Thailand of Cambodia's territorial sovereigntyover the region of the Temple of Preah Vihear and itsprecincts. Thailand replies by affiming that the area inquestion lies on the Thai side of the common frontierbetween the two countries, and is under the sovereigntyof Thailand. This is a dispute about territorialsovereignty. 157Thailand was defended by a team of international lawyers drawnmostly from the English Bar. The team was headed by a formerAttorney-General of England. Mr. Seni Pramoj, the former ThaiMinister to the U.S. who had tactfully not delivered Thailand'sDeclaration of War to the U.S. State Department in 1942, was theThai lawyer leading the case. A Member of the Legal Division of theThai Foreign Affairs Ministry, Sompong Sucharitkul, who has sincebecome a member of the UN International Law Commission was theother Thai lawyer on the case. 158Cambodia was represented by Dean Acheson, the respected formerSecretary of State under the Truman Administration. He was assistedby two professors at the Paris Law Faculty. 159While the lawyers representing the litigants would seem to beminor considerations in an ICJ case, they figured in the157I.C.J. Reports, (The Hague, 1961), p. 22.158International Court of Justice, Case Concerning the Templeof Preah Vihear (Cambodia v. Thailand). Premliminary Obiections. Vol. I (The Hague: the Netherlands, 1961) 5.78controversy which followed the Court decision.There were two arguments Thailand used in responding toCambodia's claim of sovereignty over the site of this temple.Thefirst involved a preliminary objection regarding the compulsoryjurisdiction of the International Court of Justice. The ICJ had,upon the creation of the United Nations in 1945, become an organ ofthe UN which unless otherwise stated, all members of the UnitedNations automatically became members of. The ICJ assumed the mantleof the old Permanent Court of International Justice and remained inthe premises of the old Court in The Hague in the Netherlands. Butthe Permanent Court of International Justice was dissolved on 19thApril, 1946 and according to the Thai argument declarationsaccepting its compulsory jurisdiction could not be renewed since itwas defunct. 160Thailand had accepted the compulsory jurisdiction of thePermanent Court in 1929 and then in conformity with that Court'sArticle 36 requiring renewal of a nation's acceptance every tenyears, renewed its declaration again in 1940 and once more in 1950.It was the Thai argument that the renewal of its acceptance of thePermanent Court's compulsory jurisdiction was void ab initiobecause the Court itself no longer existed. 161The Court found that this Declaration of renewal in 1950,although it mentioned the Permanent Court and the renewal of itsacceptance of that Court's jurisdiction, indicated Thailand's160Ibid .161Ibid. 21-22.79intention to accept the ICJ's jurisdiction as the new form of theold Court since it was well aware at the time of the new Court'sexistence, and Thailand's use of the old renewal process was merelya procedural expedient. In support of its decision, the Courtquoted its own Article 36, paragraph 5 which states thatDeclarations accepting the jurisdiction of the previous Court willbe held to apply to the ICJ.' 62In support of its argument, Thailand cited the case of AeriaIncident of July 27th. 1955 (Israel v. Bulgaria) in whichBulgaria, too, had claimed that its acceptance of the Court'scompulsory jurisdiction had lapsed. In that case, decided in 1959,the Court held that Article 36 did not apply indiscriminately toall states. As the Court summarized its position in that case:Suffice it to say that, on the basis of this reasoning,the Court held that Bulgaria not having, through itsadmission to the United Nations, become a party to theStatute until 14 December, 1955, the Declaration whichshe had made in 1920 accepting the compulsoryjurisdiction of the former Permanent Court for anindeterminate period of years, must be regarded as havinglapsed on 19 April 1946 and as not having beentransformed by the operation of Article 36, paragraph 5,into an acceptance relative to the present Court,Bulgaria having never at any time made a declarationindependently accepting the compulsory jurisdiction ofthe Court, it followed, on this view, that she was notbound by that jurisdiction.'The Court distinguished Thailand's situation from that of162Ib''.la p.24.163Ibid. p. 26.80Bulgaria and pointed out that Bulgaria had accepted the PermanentCourt's jurisdiction in 1921 which in the Court's view had lapsedin 1946 without any effort to renew it. Bulgaria had made norequest to have its Declaration of 1921 considered as applying tothe new ICJ. In those circumstances the Court held that Bulgariahad taken no steps indicating it had done anything accepting theICJ's compulsory jurisdiction. lmBut in Thailand's case, the Court held that by her Declarationof May, 1950, Thailand placed herself distinct from Bulgaria whichhad done nothing regarding acceptance of the Court's jurisdictionupon being admitted to the United Nations. 165 Article 36 requiresunder paragraph 4, deposit of a nation's acceptance with theSecretary General of the United Nations. Since Thailand did this inwhatever form, and the Court says the language of acceptance is upto each state to choose, the Court held that Thailand had acceptedthe compulsory jurisdiction of the Court. 166 Its decision wasframed as follows:...when a country has evinced as clearly as Thailand didin 1950, and indeed by its consistent attitude over manyyears, an intention to submit itself to the compulsoryjurisdiction of what constituted at the time theprincipal international tribunal, the Court could notaccept the plea that his intention had been defeated andnullified by some defect not involving any flaw in theconsent given, unless it could be shown that this defectwas so fundamental that it vitiated the instrument by164Ibid. 28.165Ibid.166Ibid. p.32.81failing to conform to some mandatory legalrequirement. 167The second portion of the case was argued in 1962. Thisinvolved the question of sovereignty over the disputed Temple.Thailand argued that the escarpment as described at the beginningof this case study, was the logical line along which the frontiershould have run, and if that was accepted, the temple in questionwas definitely on Thai territory. 168 The documents submitted fromthe time that the boundary was marked and surveyed indicated thatthe Parties (France and Siam) had wanted the boundary to conform tonatural phenomena, i.e. rivers, mountain chains (escarpments ) andwatersheds.In a significant statement the Court also observed, "TheParties have also relied on other arguments of a physical,historical, religious and archaeological character, but the Courtis unable to regard them as legally conclusive. "169The case cited the boundary settlements between France andSiam and the Treaty between the two of 3 February, 1904. The Courtdecided, therefore, not to delve into the events which led up tothis treaty. A Mixed Commission had been set up with members fromboth France and Siam to draw boundary lines through the Dangrekrange, which was the name of the mountains where the escarpment andp. 34.168C. Oliver, "Judicial Decisions: Case Concerning the Templeof Preah Vihear (Cambodia v. Thailand)," The American Journal ofInternational Law, 56 (1962), p. 1034.169ibid.82temple site were located. While there was no mention of the PreahVihear site specifically, the Court presumed that frontier lineshad been drawn. This it confirmed by referring to the maps whichhad been drawn up by French topographers which the Court felt hadbeen done with Siamese acceptance. One map of the eleven produced,showed the Preah Vihear site clearly marked as being withinCambodia.")Thailand argued that these maps were not binding. They werenot the work of the Mixed Commission. Supposedly the maps weresupposed to show the frontier following the watershed line but werein fact in error. If they had marked the frontier along the actualwatershed line, they would have shown the Temple on the northernside of the watershed line and therefore in Thai territory.Thailand further maintained that nothing in its behaviour everindicated that it had accepted this map or in the alternative, ifit had accepted the map, it did so because of the mistaken beliefthat the map portrayed the frontier as correctly running along theactual watershed line. 17 'In response to this argument, the Court said that the maps hadbeen produced and approved officially by both France and Siambecause they were distributed by the Siamese to their Legations inthe main capitals of Europe and the US. At their creation, theCourt agreed, the maps were perhaps not binding. But for the Court,the real question rested on whether the Parties had through theirp. 1038-9.lflIbid.83subsequent conduct, adopted the maps as properly demarcating theboundary and therefore the site of the temple, and by acting thus,rendering the maps binding on them both. 117The Court further cited a letter from the Siamese Minister inParis to the Minister of Foreign Affairs in Bangkok of 20 August,1908 in which he said that the maps produced by the MixedCommission had been completed. As the Court noted, nowhere in theletter was there any indication that the Minister thought there hadbeen any errors made. And for the Court this "...amounted toacknowledgement by conduct." 173 As the Court said:That the Siamese authorities by their conduct,acknowledged receipt, and recognized the character, ofthese maps, and what they purported to represent, isshown by the action of the Minister of the Interior,Prince Damrong, in thanking the French Minister inBangkok for the maps and in asking him for another 15copies of each of them, for transmission to the Siameseprovincial Governors."4This conduct and acknowledgement, according to the Court wasfurther confirmed by the Mixed Commission of 1909 which met to setup a geographic service for Siam with the idea of producing andtranslating such maps into other languages.Thailand further argued that at the time, no one in Siam knewof the existence of the temple and the maps had only been seen byminor officials. The Court said that the records from the timeindicated that leading Ministers of the Siamese Government had seen172Ibid. p. 1040.lmIbid. p. 1041.174Ibid.84the maps and the Governor of the Province where the temple site waslocated had seen the maps, and presumably he would have been well-aware of the temple's existence and location. firs The Court put itas follows:Frontier rectifications cannot in law be claimed on theground that a frontier area has turned out to have animportance not known or suspected when the frontier wasestablished. 176The Court also said that the rule of law cannot allow error tobe pleaded as an excuse for a party's consent. If the conduct ofthe party indicates an acceptance of the results of the error, orby so acting the party further compounds the error, the partycannot later claim that all that has gone after the error, is of noconsequence. 17 In support of this proposition, the Court citedThailand's behaviour subsequently. In 1934-35, it did its ownsurvey which once again showed the temple in Cambodian territory.Then in 1937, it entered into another boundary agreement withFrance with no protest about the temple being inaccurately depictedin the old maps, as sitting in Cambodian territory. 178Then again in 1947, when a Commission was convened inWashington to deal with boundary disputes between Thailand andFrance over Indochina, Preah Vihear was never discussed. 179175Ibid. p. 1043.176Ibid.177Ibid, p. 1044.1781Ibid.intbid. 1045.85In 1949, when Thailand placed temple keepers at the templesite, France sent a note to Bangkok, asserting its sovereignty overthe site. This was followed by another note in 1950. Thailandresponded to neither. um When Cambodia gained its independence in1953, it sent its own keepers to the temple but when they foundThai police there, they withdrew. In 1954, Cambodia sent a note toThailand and as tensions increased over the site, negotiations werecommenced which broke down in 1958. Cambodia then made applicationto the Court in 1959. 181The Court for the reasons cited previously found that theTemple belonged to Cambodia. Its conclusions were as follows:In general when 2 countries establish a frontier betweenthem, one of the primary objects is to achieve stabilityand finality. This is impossible if the line soestablished can, at any moment, and on the basis of acontinuously available process, be called into question,and its rectification claimed whenever any inaccuracy byreference to a clause in the parent treaty is discovered.Such a process could continue indefinitely and finalitywould never be reached so long as possible errors stillremained to be discovered. Such a frontier so far frombeing stable, would be completely precarious. 182With that the Court seemed to suggest that its decision wasaimed at establishing stability and finality to the situationexisting between Cambodia and Thailand. And it did so in a decisioncouched in legal language when its decision could easily beconstrued as political.The dissenting judges, (on the issue of sovereignty, thereumIbid. p. 1047.181 ibid .1212Ibid. p. 1049.86were three out of nine) indicated answers to some of the questionsthe Court had asked about Thailand's conduct at the time theoriginal boundaries were mapped. Sir Percy Spender of Australiabrought a breath of reality to the Court when he wrote:In determining what inferences may or should bedrawn from Thailand's silence and absence of protestregard must I believe, be had to the period of time whenthe events we are concerned with took place, to theregion of the world to which they are related, to thegeneral political conditions existing in Asia at thisperiod, to political and other activities of Westerncountries in Asia at the time and to the fact that of thetwo States concerned, one was Asian, the other European.It would not, I think, be just to apply to the conduct ofSiam in this period objective standards comparable tothose which reasonably might today be or might then havebeen applied to highly developed European States.There is a further general consideration ofsome significance. There can be little doubt that, atleast in the early part of this century, Siam wasapprehensive about the aspirations of France....Thisapprehension on the part of Siam as to France's attitudetoward her is a factor which cannot be disregarded inevaluating Siam's conduct -- her silence, her lack ofprotest, if protest might otherwise have been expected ofher. 1133While Jessup used the case to illustrate his point that it canoften be quite misleading to characterize views of judges in theCourt according to national alignments, the case illustrates morethan that about the Court and its inadequate consideration of thepolitics surrounding the case.Siam as discussed in Chapter Two, had suffered huge losses ofterritory because of French incursions into Indochina. Even theboundary area on which Preah Vihear sits, was taken by France inits last territorial grab from Siam and this was accomplished1413.As quoted in Jessup, The Price of International Justice,(New York: Columbia University Press, 1971), p. 15-16.87through certainly illegal gunboat diplomacy, forcing Siam to giveup territory while two French warships were anchored only akilometer away from the Grand Palace in Bangkok. Therefore for theCourt to disregard how this entire matter arose in the first place,how even that Cambodia was asserting its rights based on the heavy-handed actions of its former colonial master, which were probablyunjustified under international law, was to blind itself to thereal issues. But in doing this, the Court must have been aware ofthe plethora of questionable boundaries carving up the globe andseparating the new states which were in the majority formercolonies, formed by boundaries drawn by colonizers according totheir own jurisdictional needs rather than the needs of the nationswhich would eventually emerge upon the break-up of colonialempires.The reaction in Thailand was popular outrage especially at theCourt's directive that it quit the temple. l& As celebrants inPhnom Penh, gathered in the streets to celebrate the Cambodianvictory, General Sarit announced that Thailand would not onlyrefuse to withdraw its troops from the temple but would send inreinforcements to the contingent already there. 185Thailand declared a boycott of SEATO, which was headquarteredin Bangkok, in reaction to what some Thai sources quoted by the NewYork Times had said was undue US favoritism for neutralistCambodia. The Thais were apparently upset that former Secretary ofU^York Times, June 16, 1962. 6:2."New York Times, June 17, 1962. 7:2.88State Dean Acheson had represented Cambodia before the Court. Inaddition to Mr. Acheson's involvement, Thai sources were alsocomplaining about the votes of judges on the Court from Britain,the US and France which they clearly saw as a betrayal of a pro-Western ally. In an editorial at the time, the New York Timesstated that Thailand's emotional reaction to the Court's decisionwhile understandable was not conducive to international harmony andpeace and recommended a saner, more rational approach since afterall, the temple site was of little strategic value. As the Timeswrote:...the Thais would have much to gain from heeding thecourt decision and giving up Preah Vihar [sic]. Thetemple has emotional but no strategic importance. Toyield it to Cambodia would remove a source of frictionand possibly pave the way for a mutually beneficialimprovement in Thai-Cambodian relations. And Thailandwould acquire prestige for accepting findings, howeverunpalatable, of a world tribunal whose activities are oneof the main hopes for building a world rule of law." 6On July 1, 1962, the Times reported that Thailand's ForeignMinister Thanat Khoman had, with reluctance, acknowledged theCourt's ruling and said that Thailand would shortly withdraw fromthe site although it did not regard the decision as legal.Nevertheless, as a member of the UN, he stated, Thailand acceptedits obligations. The Foreign Minister also was quoted in thearticle as observing that Cambodia's only access to the temple wasthrough Thai territory and suggested the US and the PRC cooperatein building the Cambodians an elevator up the cliff to the site.This, as the Times pointed out reflected the traditional"6Editorial, New York Times, June 21, 1962.89relationship the Thais have with Cambodia plus Cambodia'sneutralist position that enabled it to receive foreign aid fromboth the West and the Communist bloc. This stood in contrast toThailand's staunchly pro-West position internationally. 187Further to its protest, that the Chief judge of the Court was aPolish communist, the Thai government asked a visiting Polish tradedelegation to return to Poland. And in protest over the judge fromFrance finding against Thailand, the Thai ambassador in Paris waswithdrawn. umOver July, Thailand continued its protests but in compliancewith the Court ruling, announced its withdrawal from the templesite. The Minister of the Interior was quoted in the Times assaying, "History will remember this day as the day we lost oursovereignty over the shrine." 1119 But it quietly ended its boycottof SEATO and its representatives resumed attending meetings at theSEATO headquarters in Bangkok. m The Sarit regime was alsoreported to have called a halt to demonstrations over the Courtdecision. General Sarit was quoted in the Bangkok World, as notedby Singh as saying:Although Cambodia has for the moment won the ruins of thetemple, the soul of the temple of Phra Viharn remainswith Thailand. We reserve our inherent right of Thailandin this matter, especially the right to have resource to1117New York Times, July 1, 1962. 25:1.umL.P. Singh, "The Thai-Cambodia Border Dispute," AsianSurvey, Vol. 11: 8 (October, 1962), p. 25."New York Times, July 17, 1962. p. 7.15New York Times, July 16, 1962. p. 2.90any legal processes which may offer themselves in thefuture and will result in the recovery of our rights overthe temple at an opportune moment. 11"This case in retrospect illustrated many aspects of Thailand'straditional view of foreign policy and its effect on internationallaw. First, its most immediate reactions to the decision, werestrongly influenced by the political needs of the leader, GeneralSarit at the time. There is little doubt he sanctioned the blusterthat greeted the news of the decision, all for the benefit of thepopulation, the need to encourage national unity. The Thai nationas a unit had lost face. And so when passions were at theirhottest, it was necessary for the government to portray the Court'sdecision as unjust, to accuse the judges of being communist,sympathizing with neutralist Cambodia against pro-West Thailand.Second, the case demonstrates Thailand's relative inexperiencewith international tribunals and law. While it did have two Thailawyers on the case before the World Court the case was primarilyrun by British jurists. Its reactions to personalities as lawyersand judges influencing the decision indicates either a failure toappreciate the supposed objectivity of such players in a legalarena or its unwillingness to accept them as impartial.Third, the case shows that even in matters where law has comedown against it, Thailand will eventually accede to the rule ofinternational law. Once public opinion was no longer focused on theloss, and it was no longer alive as a political issue, the Thai""As quoted in Singh, op. cit. supra in note 63.91government withdrew it from public attention, relying on thepublic's short attention span to cool tempers and allow diplomacyto take over.There are parallels that can be drawn to other instances whereThailand has come into conflict with international law andorganisations. Its reaction, for example, to the sudden influx ofrefugees from Cambodia in 1979 after the Vietnamese invasion, putit in breach of the international law of non-refoulement. At firstthe Thai government in violation of international law, pushed backthe refugees. But in the face of international pressure it didcomply with international law and grant them sanctuary. This willbe discussed in greater detail in the next chapter.b. The aftermath of Preah Vihear and the lead up to theVietnamese embroglioIf the Court genuinely wanted to impart stability to theboundary between Thailand and Cambodia, its wish was a long wayfrom fulfillment. It is ironic that the case which was designed tobring finality to the boundary seems in retrospect to have becomemore of a milestone heralding the beginning of over twenty years ofstrife along that very frontier.From 1964 to 1970, Cambodia and Thailand presented charges andcounter-charges to the UN Security Council regarding borderviolations. The Cambodian complaints usually centered on incursionsinto Cambodia of Thai police, intelligence units, and loggers. Thai92fishing boats were frequently caught fishing in Cambodianwaters. m It was noted that the area around the disputed templewas the subject of many of these charges. In 1968, Cambodiaprotested that Thailand had ambushed a battalion of Cambodiansoldiers and killed 16 on Cambodian territory. 1933. A Decade of War and its Aftermath (1970-80) If the previous decade was "unsettled", it was followed by tenmore years of equally extreme disruption, not only on Thailand'sborders but domestically as well. On the home front, after therepressive regimes of the 1960's failed to relinquish control inthe face of increasing agitation, student riots brought downgovernments in 1973, and again in 1976.On the foreign relations front, the most noteworthydevelopment during this period was the change in Thailand'srelationship with the United States. When it became obvious thatthe United States was no longer as committed to its presence inSoutheast Asia as it had been earlier, and it withdrew its forcesfrom Vietnam, Thailand performed one of its characteristicreversals of policy and asked the US to withdraw its forces fromits bases in Thailand as well. This was also the result ofdemocratically-elected governments in Thailand at the time beingless addicted to American military aid than the military regimes ofmUN Yearbook, 1966., pp. 162-63.193UN Yearbook, 1968, pp. 187-89.93the 1950's and 1960is. 194One of the consequences of this policy was Thailand's newwarming toward China and in 1975, Thailand recognized the People'sRepublic of China.This period was one of flexibility and more experimentaldiplomacy. Thai diplomats and international lawyers in the ForeignMinistry had to face the victory of communism during this decade inall the states of Indochina. Viraphol put it as follows:Thailand has understood well the rule that in politicsthere are no permanent friends or enemies, and prevailingconditions are the prime determinants of the propercourse of action to be taken. In this respect, Thailandis less obsessed with the question of morality ininternational politics and is more concerned with the artof survival. 1954. The 1980's: Coping with War and Prosperity"I would say that Cambodia remains one of our major foreignpolicy concerns. After all we still have a half million refugees incamps in Thailand." His Excellency Chawat Arthayukti, Thailand'sAmbassador to Canada made this statement in 1990, describingThailand's past decade of preoccupation with the situation inCambodia and the rest of Indochina. mWhen Vietnamese forces invaded Cambodia in December , 1978,194C. Phuangkasem, Thailand's Foreign Relations, 1964-80, p.10 .195S. Viraphol, Directions in Thai Foreign Policy, (Singapore:Institute of South East Asian Studies, 1976), p. 58.196Interview conducted in August, 1990, in Vancouver, B.C.94Thailand reacted characteristically, mobilizing its forces alongthe border, protesting in the United Nations, and working activelywith its partners in ASEAN to formulate a joint reaction. Thisinvasion according to Alagappa, "...effectively removed the onlyremaining buffer between Thailand and Vietnam. Vietnamese militarypresence in Cambodia was viewed as a direct threat to the nationalsecurity of Thailand. "197In addition to this gathering of support, Thailand moved evencloser to China. The last five years have seen a remarkable warmingof Thai relations with China. The People's Republic of course,became a formidable counterbalance to Vietnam and long been itstraditional enemy. Through adroit bargaining and sweetheart deals,China has sold enough tanks, ships and aircraft to Thailand to makesome military analysts suggest Thailand's traditional reliance onthe U.S. is shifting. Professor Surachart Bamrungsuk of theInstitute of Security and International Studies at ChulalongkornUniversity in Bangkok in a paper presented to military circles inthe U.S. argued that Thailand would increasingly resort to Chinabecause Chinese weaponry was more appropriate for Thai needs interms of price and technology. The closeness in relations withChina was reflected in a ban on a visit of the Dalai Lama toBangkok and the deafening silence in Bangkok after Beijing'scrackdown in Tiananmen Square. 198197M. Alagappa, "The Dynamics of International Security inSoutheast Asia: Change and Continuity," Australian Journal ofInternational Affairs, 45:1 ( May, 1991). p. 15.198Bangkok Post, July 2, 1987, p. 5. In the author's files.95The invasion completely altered the balance of power on theIndochinese peninsula in the Thai view, and although its primepolitical motivation for its actions during the 1980's was torestore this balance once again, it used the rhetoric ofinternational law to attack the Vietnamese position. "9Together with China and the ASEAN countries, Thai support ofthe Coalition Government for a Democratic Kampuchea (CGDK)guaranteed it recognition by the international community.Thailand's provision of sanctuary for the forces of the CGDK wasbacked by the weight of international law and the United Nations.It meant that the forces of the resistance and the waves ofrefugees which poured over the frontier, could to some extent serveas buffers between the vulnerable Thai hinterland and theVietnamese. And Thailand's political needs were not only reinforcedby its powerful friend on Vietnam's northern frontier, but also bythe international community. 200Thai policy confronted head on what it regarded asexpansionist Vietnamese policy. It saw Vietnam as the proxy forSoviet influence against the Chinese. Vietnam aimed at wiping outthe resistance forces, developing an internationally-recognizedgovernment in Cambodia and setting up an organization of thefraternal nations of Indochina as a counterweight to the Chineseand to a lesser extent, Thai interests. Therefore in dealing withVietnam, Thai policy employed all the tools at its disposal,199Ibid.96including international law and the United Nations, to effect itsnational agenda . 201Both sides used the language of international law to justifytheir actions. The Thais complained in the United Nations thatVietnam's actions were "illegal". The Vietnamese portrayedthemselves as the liberators ridding Cambodia of the Khmer Rougescourge which had committed genocide against their own people. 202While the policies of the two sides resulted in a stalematefor most of the decade, Vietnam's announced withdrawal fromCambodia was the first step needed by Thailand to justify anychange in its approach to Indochina.Thailand's Prime Minister, Chatichai Choonawan in August 1988,announced his policy of "...turning Indochina from a battlefieldinto a marketplace" and this change in politics relied according toAlagappa, on Bangkok's recognition that eventually it would be ableto take advantage of traditional Khmer antagonism against theVietnamese. vn It also shared language and religion with Laos andreligion with the Khmers. Premier Chatichai's move reflected basicchanges in the goals of Vietnam and Thailand, both of which werefaced with rapid changes elsewhere, especially the differentpriorities emerging in China and the Soviet Union. 204202See Shawcross, The Oualitv of Mercy, as quoted in ChapterFour.203Alagappa, op.cit.2174Ibid.97The only solution in Cambodia as far as the Thais wereconcerned, involved four steps. First, a U.N. peacekeeping forcehad to be introduced to regulate a ceasefire. Next, a SupremeNational Council would have to be formed to organise the countryand prepare for internationally-supervised elections. All factionswould have to be disarmed. Finally, economic assistance would haveto be poured in to get the country functioning again. With thepeace accord between the various factions now in place this wouldseem to be what is occurring. In other words, to all intents andpurposes, Thai policy and reliance on international law andorganisation to support it, has been vindicated and the currentregime in place after the coup of February 23, 1991 seems tosupport developments in Cambodia. mTo the north, along the Mekong, relations with Laos areimproving as well. This warming is also a recent change. Despitethe two nations' very similar languages and cultures, relationshave been cool ever since the Communist takeover in Laos, and havesometimes descended to open hostilities. But responding to apetition from the governors of the provinces bordering Laos,Bangkok liberalised its terms of trade with Laos in 1988, removinggoods such as bicycles from its list of items it had previouslydefined as "strategic" . Cross-border trade has jumped enormouslyas a result. 206205R. Tasker, "Popular Putsch," Far Eastern Economic Review,(March 7, 1991) pp. 17-19.206R. Tasker, "Neighbourly Gestures," Far Eastern EconomicReview, (April 25, 1991) p.20.98But a similar push to improve relations with Burma, or as itis now called, Myanmar, has demonstrated what little heed Thailandpays to international condemnations regarding human rightsviolators, especially if its own political priorities will beenhanced in cultivating a relationship with the violators. FormerSupreme Commander General Chavalit Yongchaiyut flew to Rangoon inDecember, 1988, and had lunch with General Saw Muang, the chief ofthe Burmese Army. This visit coincided with a nationwide banThailand had recently imposed on logging in Thailand. In an articlein the Far Eastern Economic Review, titled "Partners in Plunder",Hamish McDonald quoted Saw Muang as saying in his speech ofwelcome, that General Chavalit was "...the first dignitary to visitus after the new situation has developed in Burma." As Mr. McDonaldwrote, "Actually it was only three months after Saw Muang's troopsgunned down perhaps 3,000 demonstrators in Rangoon." 207Within days of the visit, Thai logging companies were movinginto the border areas, buying up teak concessions. Within months,the hungry sawmills of Thailand were once again churning out teakfor the world market and international environmentalists werecondemning the wholesale eradication of teak forests in Burma. Thistacit understanding gave Thai companies what they wanted. TheBurmese received Thai acquiescence to move against the ethnicminorities along the Thai border and in some cases massacred entire207H. MacDonald, "Partners in Plunder," Far Eastern EconomicReview, December, 1988.99villages. 208 Many of these moves have been noted by Thailand'sother neighbours like Laos which is hesitant to open its doors toThailand's commercial interests as a result. 209All of this, whether consistent or inconsistent withinternational law, reflects basic Thai policy: if it coincides withinternational law, so much the better. If it does not, try andeffect the policy with as little loss of face or influence aspossible.Thailand's relations with the rest of Southeast Asia arelargely based on its membership in the Association of SoutheastAsian Nations (ASEAN). Made up of Thailand, Malaysia, Singapore,Indonesia, the Philippines and Brunei, this grouping hastraditionally had an economic focus. However, it is on onepolitical issue, Cambodia, that ASEAN has been most activeinternationally although national as distinct from regionalinterests do prevail on other questions. For example, there is nocommon ASEAN stand on the question over the U.S. military bases inthe Philippines. Thailand regards the issue as one Filipinos mustdecide for themselves although it does favor a continued Americanpresence in the region. 210But ASEAN members do want to be consulted before Thailand209R. Tasker, "Neighbourly Gestures," Far Eastern EconomicReview, (April 25, 1991), p. 20.VOSee M. Alagappa's description of ASEAN's security concernsin the Australian Journal of International Affairs, 45:1 (May 1991)pp. 12-15.100changes its political mind. The tendency of the ChatichaiGovernment to flip a page and make an announcement of changewithout consulting its ASEAN colleagues beforehand was greeted withconsternation. The new policy on Indochina was a case in point.Another recent instance of Thai policy shifts causing anxiety amongits ASEAN partners involved Prime Minister Chatichai's proposal inMay, 1990, that the Thai and Japanese navies conduct joint navalexercises in the South China Sea. Even the Japanese stayed coolover the proposal. 211The vicissitudes of Thai foreign policy have not escapednotice especially from its neighbours in ASEAN. As Tasker observed:Other ASEAN countries are aware of Thailand's history ofswaying into the fold of one power or another as it deemsfit for its own stability and prosperity. At varioustimes Britain, France and more recently the US havefitted that role for the Thais. During World War IIThailand swung towards the imperial power of the time,Japan, which immunised it against the brutal Japanesemilitary occupation which afflicted the rest of SoutheastAsia. 212But then as Gardiner Wilson, for two years until July 1989, headof the Political Section at the Canadian Embassy in Bangkok,observed:Every nation's foreign policy is determined by their ownperception of their national security. If you look atThai history over the last two centuries, the invasionsby the Burmese, the loss of almost half its territory toBritish and French imperialism, it is easier to211R. Tasker, "Full Astern! Chatichai's Naval Offer RattlesNeighbours," Far Eastern Economic Review, (May 24, 1990), p. 19.212Tasker, "Full Astern!", Far Eastern Economic Review. op.cit.101understand why the Thais are concerned about theirborders. That is why their national survival has had sucha strong influence in determining their foreignpolicy." 13ConclusionsRather than reviewing the myriad foreign policy problemsThai policy-makers have confronted over the decades of the post-warera, and their links to international law and organisation, itseems more valuable to attempt to hypothesize what are the mainpreoccupations of Thai policy makers when they formulate foreignpolicy and ultimately what have been the main determinants of Thaiactions regarding international law and organisations.In discussing the modern period from the 1960's to the presentin Thailand's foreign relations, its relations with the statescontiguous to its borders can be said to have dominated. Thailand'srelations during this period and the manner it conducts its foreignaffairs have not really deviated from the historic trendsestablished and described in the previous chapter. As Phuangkasemobserved:Despite the frequent changes of government, Thailand'sforeign policy objectives have been rather firm andconstant. The fundamental goals have been themaintenance of national independence and the integrity ofthe kingdom. As Thailand is a small country, limited inits human and material resources, its foreign policy hasbeen subjected to changes brought about by adjustments tointernal and external situations. 214mInterview with Gardiner Wilson, Vice-President of Asia-Pacific Foundation, Vancouver, August 21, 1990.214C. Phuangkasem, Thailand's Foreign Relations: 1964-80,Singapore: Institute of Southeast Asian Studies, 1984. 8.102Thailand has been active in international organizations sincethe League of Nations and is now a member of the United Nations andmany of its subsidiary organs. Its eventual acceptance of thedecision of the ICJ in the case brought before it by Cambodiaindicates that faced with world opinion, it will acquiesce wheninternational law would seem to be against its actions. But if itcan evade international attention, and advance its interests as itwould seem to be doing in its relations with Myanmar, which mightat times be in violation of international law, Thailand will alsoact outside international law.Yet in the most recent past, Thailand's position before theUnited Nations regarding Cambodia and Vietnam's invasion has beenvindicated by both international law, support from theinternational community and eventually even, the events themselves.What has unfolded in Cambodia has given Thailand all that itspolicy-makers in its Foreign Ministry could have ever hoped for.This most recent experience finding its foreign policies largely inconformity with the letter of international law, and eventuallyreaping success, augers well for its compliance in other areas ofinternational law which will be discussed in the next two chapters.103Chapter FourThailand and International Human Rights LawI. IntroductionIn the previous chapter, a history of Thailand's foreignrelations revealed how it has been affected by international lawand in turn, used international law in certain ways to effect itspolitical agenda. This chapter deals with the law that hasdeveloped regarding international human rights. In taking a stanceon issues involving international human rights, Thailand has beeninfluenced primarily by internal factors such as its culturalreactions to minorities, aliens, women and other disadvantagedgroups but most importantly, the ideological complexion of theregime in power. It has also been influenced by its internalstability, not only dependent on the regime in power and the extentof military control, but the success or failure of destabilizinggroups like the Communist Party of Thailand, (CPT) or certainseparatist groups like the Muslims in the four southernmostprovinces. Internal security has also depended on the degree ofeconomic security in the country.Externally, Thailand's attitudes to human rights have likeits foreign policies, been influenced by the alliance of the moment104which in the post-war era has been predominantly with the UnitedStates. It has also been influenced by the political situation onits borders and specifically the relations it has with the Statesof Indochina. While it can be said that certain of the internalfactors cited above have had a decisive role in determiningThailand's stance on refugees and international law for example,Thailand was very much influenced by external relations with theUnited States, China and the threat posed by Vietnam, especiallywhen it invaded Cambodia. These external relations largely governedthe way it reacted to the sudden wave of Cambodians across itsborders in 1979, and this will be discussed in more detail later inthis chapter. Finally, Thailand has become a key member of theAssociation of South East Asian Nations (ASEAN) as discussedpreviously and this has encouraged it to have a more regionalattitude to political and economic questions as they relate tointernational law and human rights.The countries which have been the most involved with theemerging regime of international human rights have been thecountries with the greatest tradition of protecting human rights intheir own legal systems. Western liberal democracies have been thefirmest supporters of the evolution toward universal human rightsand much of their concern with international human rights arose outof their collective horror in the aftermath of World War II whenthe results of Hitler's holocaust were revealed. 215215L. Henkins, How Nations Behave: Law and Foreign Policy, (NewYork: Columbia Univ. Press, 1979). 230. See also W. Shawcross, TheOualitv of Mercy, (New York: Simon and Schuster, 1984), 423-30 for105This is not to say that the same democracies are not oftensingled out by groups such as Amnesty International for their ownshoddy record protecting human rights. But in most instances, theircitizens and various non-governmental civil liberties organisationsacting as lobbyists in their own governments, have had the time todevelop the ideology of human rights, unfettered by totalitariangovernments and slowly evolving legal traditions. 216There also must be considered the level of political, socialand economic development which most developed States have reachedwhich allows them the luxury of making human rights a priority fora majority of their populations. Having passed through the phasesof development which have given most of their people the basics oflife, adequate food, education, medical care and shelter, they candevote their energies to ensuring rights for those sectors of theirpopulation not included in the overall prosperity of the generalsociety. This has meant in the Western nations that rights grantedwomen have matured and now, it might be suggested, they can in manyinstances be extended to gay men and lesbians. Poverty and welfarerights are being extended to visible minorities.In addition, the drive for justice and equality in thesesocieties has been supported by the institutions with whichdemocracy is usually associated, a free press, an independentjudiciary, a viable legal profession, and an educated populationa discussion of the holocaust, the Nuremberg Trials and the ideasof holocaust relative to the refugee crises and genocide in today'sworld of continuous civil war.216Ibid at 231.106watchful of government and free to vote them out of office if theyfail to meet their expectations. Therefore there has been theargument advanced, based on the foregoing, that human rights lackuniversality because they are basically a Western creature groundedin the Western concept of "natural" rights. 2172. The Present State of International Human Rights LawAs for the evolution of international human rights law, mostof the most recent Declarations and Covenants we think of as beingincluded under that rubric, have developed through the UnitedNations and its various organisations. 218 This has meant thatStates like Thailand have had to make a stand on internationaldeclarations which, on their face are often not in conformity withtheir national interests or traditions. Jealous of theirsovereignty and certainly not wanting intrusive foreign observerscommenting on their human rights records, States like Thailand haveoften stood mute on the sidelines of a unanimous vote, watchingthe measures pass through the United Nations General Assembly,rather than risk the taint their opposition would establish in theeyes of the world. 219217 ^Crawford, "International Law and the Recognition ofAboriginal Law," Thailand Yearbook of International and ComparativeLaw. 1 (1986).92218Henkins, op.cit. supra at pp. 230-31.2"Ibid.107Henkins described this phenomenon as follows:"Protected by the principle of unanimity, governmentscould take part in the law-making process without anycommitment to adhere to the final product, tryingnevertheless to shape emerging international norms sothat their country's behavior would not be found wantingin their light; and it might even be possible to adhereto them without undue burden if that later appeareddesirable.mThis discussion of international human rights and Thailand'sfailure to sign or ratify many of the Conventions dealing withhuman rights is offered only in that light: that Thailand hasfailed to participate to a large extent in the emergence of thesedeclarations and covenants but this low profile can be explained bytwo facts of its political life which might on the surface seemcontradictory.First, as has been said repeatedly throughout this paper,Thailand has, for most of its post-war history, been governed bythe military elite, which has not placed evolving civil libertiesat the top of its agenda. And, internationally, Thailand has beenallied with the West and specifically, the United States againstthe spread of totalitarian communism in the region. Therefore,while using the excuse of internal security concerns to curbinternal dissent, it has not been able to come out blatantlyagainst human rights provisions either, even provisions which mightallow international organisations to intrude on its precioussovereignty and make observations on its protection of civil220Ibid .108liberties.The value of international human rights law is demonstratedwhen nations incorporate the provisions of the majorinternationally-created human rights covenants into their owndomestic legal systems. As said earlier, while human rightscovenants would seem to be creations of the West, in fact thesecovenants do have universality by the very fact that they have beensupported in the majority by non-Western nations. 22 'In spite of its reluctance, there are several internationalhuman rights provisions that Thailand has acceded to, merely bybeing a member of the United Nations. In addition to the U.N.Charter which includes in its Preamble a general commitment bymember states to protect human rights, the other major human rightsDeclaration, is of course the Universal Declaration of Human Rightswhich was passed unanimously by the General Assembly on December10, 1948. 222 Thailand, being a member at the time, was part ofthat vote.Other Conventions which relate to Thailand are Declarationsand Conventions passed by the United Nations in the 1950's and'60's, which have enshrined in international law the human rightsof aliens, women, children, and refugees. Specifically thefollowing Covenants have been passed by the UN: Convention on thePrevention and Punishment of the Crime of Genocide, 1948; theConvention Relating to the Status of Refugees, 1951 and amended byUlCrawford, supra in note 3.222Universal Declaration of Human Rights, U.N. Doc. A/811.109the Protocol in 1967; Convention Relating to the Status ofStateless Persons, 1954; Convention on the Reduction ofStatelessness, 1961; Convention on the Political Rights of Women,1953; Declaration on Elimination of Discrimination against Women,1967; Declaration of the Rights of the Child, 1959; theInternational Covenant on Economic, Social and Cultural Rights,1966 and the International Covenant on Civil and Political Rights,1966.Thailand joined the United Nations in 1946, and was one offorty-eight countries which voted for the Universal Declaration ofHuman Rights. At the time of Thailand's vote, its domesticpolitical scene was extremely unsettled since it had undergone amilitary coup in 1947 which had put Premier Pibul and his militaryfaction firmly in power once again. m If Thailand had chosen toabstain, it would have placed it in the unsavory company of thecommunist bloc and South Africa. Thus even if some of theDeclaration's provisions were antithetical to Thai law orconstituted freedoms at the time, it would have been unthinkablefor Thailand to stand up and be counted among such a minority ofnations, as being unsure of such a monumental document. And anyway,the government of Premier Pibul was undoubtedly aware that theDeclaration was at the time, not regarded as being legallybinding .zmmRefer to Chapter 2, for a more detailed discussion of theevents of this period.224Ian Brownlie, (editor), Basic Documents on Human Rights,(Oxford: Clarendon Press, 1971) , 106.110Thailand has neither signed nor ratified many of theabovementioned human rights Covenants but specifically, by March1990 it was not among 91 UN members who are now parties to theInternational Covenant on Civil and Political Rights. The majorityof those States are developing nations and in signing this Covenantthey have extended certain guaranteed rights to ethnic minoritygroups. Neither had Thailand by March, 1990, acceded to the UNESCOConvention on Discrimination in Education. It is not among theStates which are parties to the International Convention on theElimination of All Forms of Racial Discrimination. And it has notjoined the 100 members which have become party to the Convention onthe Prevention and Punishment of the Crime of Genocide, 1948. 225II. Internal Factors Militating Against the Developmentof Human Rights in Thailand A. The Monarchy and Lese MajesteThe cultural and political impediments to true democracy inThailand are many and are rooted in the most basic institutions ofits society. The monarchy in Thailand is still at the top of thesocial pinnacle. The Thai Royal Family sits at the apex of the Thaisocial hierarchy and is protected by law against any unsavorycriticism. The threat of the law against lese majeste, acts as a225P. Thornberry, Minorities and Human Rights Law, (London:Minority Rights Group, 1991). 5.111catch-all accusation hanging over the heads of all Thais, andforeigners in Thailand too, for that matter. Anything written, notonly about the current Royal Family but even the previous Kings ofSiam or Thailand, if judged disrespectful, will often result in animmediate ban on the utterance or the individual who utteredit. 226 This has effectively stifled discussion of the place ofmonarchy in Thai society. And without the freedom to discuss theposition of the highest authority in the land, (albeit titular),freedom of speech is definedly curtailed. Every year in addition toThais who step into this treacherous area, a few foreigners runafoul of the law. They find themselves thrown in jail forexpressing some perceived slur against the monarchy. 227 Often theyare forcibly ejected, unsure about what they were reported to havesaid, or to whom. 22822 This brings to mind the book, "The Devil's Discus" which waspublished in the 1960's and involved theories concerning the deathof King Ananda, Rama VIII, the brother of the current King. Theauthor meticulously reviewed the evidence and concluded that theyoung King had committed suicide. This author received a copyphotocopied which was passed to him by a teaching colleague atChulalongkorn University and the actual transfer was performed withthe air of tension one might associate with a drug deal.227An acquaintance of the writer, in April, 1989, was having aconversation with an alderman in the town of Hua Hin to thesouthwest of Bangkok one evening over a few whiskies and made somecomments about a Princess who was visiting the town at the time.His comments were reported to the police even though it was notclear exactly what he had said, since his remarks were in Englishand none of the participants spoke English well. He spent a week injail and upon being released pending trial, exited Thailand leavingbehind a large investment.228The Canadian Embassy informed me of a case where they werecalled to the Airport by a frantic American free lance journalistwho was being held in custody under armed guard. Apparently theThai police had arrested him thinking he was the Globe and Mail112In spite of being rendered a "constitutional monarch" in thecoup of 1932, the King of Thailand, currently His Majesty KingBhumipol Adulyadej still wields considerable authority. His wordcounts for much in Thai politics and if he has not sanctioned aparticularly significant change on the political front in Thailand,it is unlikely to continue unmodified. King Bhumipol is the ninthin the Chakri line and actively participates in ceremonies whichaccentuate the family's links to the 700 years of monarchicaltradition in Thailand.The Thai Royal Family not only has important symbolic powerin the granting of privileges and titles to honoured citizens, butthrough its Crown Bureau, has become perhaps the richest propertyand corporate owner in the Kingdom, holding investments inproperties and corporations worth billions of dollars.Thai love of ceremony, pomp and circumstance can be said toact as a further guarantee of the perpetuation of the monarchy'smystique, and the hierarchical class structure which placesconsiderable constraints on social mobility.In relation to human rights, kingship seems to mean more tothe Thai people than what a Western constitutional monarch wouldembody for his or her people. First the Thais view the king as thesymbolic father of the nation and therefore, the wise advisor andimpartial judge. Secondly, the King has inherited Hindu-Buddhistcorrespondent who had written an article about the King which hadsuggested that the King had a certain opinion on some issue. Andthe comment was not even particularly critical of His Majesty KingBhumiphol.113ideas of kingship which suggest his adherence to principles of law,the right way. Therefore he has access to universal power. 229In addition to these ideas of his earthly powers, the Thaiking has traditionally been revered as the "earthly incarnation ofa Hindu god".m Even today the king has a traditional retinue ofBrahmans who keep up at least the appearance of the god king. Thishas meant that the respect accorded the Thai king is akin to acult, especially among the rural peasantry which still gives themonarchy its strongest support. 231B.The Cult of the LeaderThe cult of kingship has naturally led the Thai population toa reliance on "the leader" and therefore a susceptibility to strongmen who are not only political and military leaders but who alsocultivate an image conforming to the idea of Thai "manhood"involving womanizing and heavy drinking . 232 This is perhapschanging to some extent as Thai society becomes more sophisticatedand old values dissolve. Nevertheless, in light of this reliance onthe personality of the leader, considerable weight must be placed229H.E. Smith, Historical and Cultural Dictionary of Thailand,(Metuchen, N.J.: Scarecrow Press, 1976). 83.23°Ibid.231 Ibid.m2See Wyatt, Thailand: A Short History  cited previously andhis section on General Pibul during the 1930's and General Saritduring the late 1950's and early 1960's.114on the background of the man in power at the time, in predictingthe course of Thai policy on issues involving international law andrelations. As Phuangkasem described this phenomenon:In analysing the relationship between internal politicsand foreign policies, one also has to stress the role ofthe decision-makers in determining the type of foreignpolicy to adopt. In this regard, many see Thai foreignpolicy during much of the last three decades [1950-80] asa reflection of the idiosyncracies of the ruling militaryelites. 233Up to 1980, Thailand had had seven prime ministers who weremilitary officers and nine who were civilians. ra Since 1980,there have been three governments. Prime Minister Prem Tinsulanondawas a Army general and appointed by his faction or coalition. PrimeMinister Chatichai Choonawan, also a general and former diplomat,was the first elected Prime Minister for some time, but supportedby a clique in the military. The current Prime Minister, AnandPanyarachun, was appointed by a military faction after a coup onFebruary 23, 1991. 235At times of modern Thai history where the leader is in obviouscontrol, without any pretense at maintaining a plurality, policiesinternationally have very much been affected by hispersonality . ra Even the most recent Prime Minister to be elected,Chatichai Choonawan, with his policy to turn Indochina from a233C. Phuangkasem, Thailand's Foreign Relations. 1964-80,(Singapore: Institute of Southeast Asian Studies, 1984). p.11.raIbid.235B. Tierney, "Generals Hang on to power, claim country getsstability," Vancouver Sun, August 12, 1991.raPhuangkasem, op. cit. at p. 11-12.115battlefield into marketplace, had enormous effect on the course ofThai foreign relations during the brief period he was in power. 2117C. The Military-Bureaucratic Elite The evolution of Thailand's present constitution began withthe coup which overthrew the absolute monarchy on June 24, 1932 asdescribed in Chapter 2. While the purpose of the coup plotters wasto render the monarchy constitutional supposedly along the lines ofthe monarchies which had evolved in Europe, the Thai monarchy didnot become as innocuous as its European counterparts. 238 And theuse of a coup initiated by factions from the military establisheda pattern for political change in Thailand which is still in effecttoday. As recently as February 23, 1991, the elected governmentof Prime Minister Chatichai Choonhavan was overthrown and the PrimeMinister took the customary flight to Switzerland. 239Linked to the rigidity of class divisions in Thai society isthe paramount position of the Thai military in almost everyimportant aspect of power in Thai society but especially theirlinks to the bureaucracy. 244 Some observers such as Keyes, have237M. Alagappa, "The Dynamics of International Security inSoutheast Asia: Change and Continuity," Australian Journal ofInternational Affairs, 45:1 (May, 1991). p. 15.228Judith A. Stowe, Siam Becomes Thailand: A Story of Intrigue,(London: Hurst & Co.), 1991, p. 20-22.WB.Tierney, "Generals Hang on to Power" Vancouver Sun, Oct.11, 1991.NOSee Keyes in the following note.116suggested that the military does give poor working class or ruralThais eventual access, via promotion through the ranks, to thecorridors of power. But this attribute of the military would seemto be outweighed by the way the interests of the militaryleadership stultify genuine democratic evolution. The fear ofmilitary retaliation ensures that the media and Thai groupspromoting civil liberties must be careful of treading on thesoldiers' tender toes. 2"The institutions of monarchy, the military and the bureaucracyare of course instrumental as the formulators of policy in Thailandand especially policies as they relate to international humanrights. But Thai history has been very much a record of arriving atconsensus. In his analysis of the Thai attitudes to society andpolitics, J. S. Girling said:"Policy is habitually decided not by constitutions,elections or parliaments (when permitted to exist), butwithin the bureaucracy, in which the armed forces,particularly the army, play the key security role. Thevalues sustaining the "bureaucratic polity" are those ofa status society: essentially this means "knowing one'splace" in a hierarchy in which individuals are rankedaccording to their power, prestige and increasingly,wealth.„ 42Because of the paramount position of the military in Thaipolitics and almost every other aspect of social life in Thailand,241See Keyes, Thailand: Buddhist Kingdom as Nation-State,(Boulder and London: Westview Press, 1987) 142.242Ibid. p 12117its concerns have dominated not only the way Thai society operatesbut Thailand's external relations with the world as well. BothThailand's foreign policy and its resultant stance when dealingwith international law and human rights can be linked to the aimsand interests of its armed forces and their influence over thebureaucracy. 20On the domestic front, this military pre-eminence has set thetone for the development of civil liberties in Thailand. Being theconservative and reactionary organisation it is, the military hasregarded other competing interests in Thai society with consistentsuspicion. Neither are Thais raised to be assertive individuals.Rather they are socialised to conform. 244 This has meant that mostinterest groups in Thai society have seldom challenged the statusquo except in very quiet ways. And this has played into the handsof the military over the years.2. Internal Security and the Communist Party of Thailand (CPT) Founded in 1942, the CPT was throughout its history, closelylinked to the Chinese Communist party. In 1946, it was brieflylegalized in order for Thailand to get membership in the UnitedNations and avoid a Soviet veto. But this was brief. It was banned243Ibid. p. 231.2"See W. Klausner, Conflict or Communication as cited in theBibliography.118again in 1947. 245Anti-communism has been part of the rhetoric of Thaigovernments since the war. This stance can be partially explainedby Thailand's close relations with the United States which afterthe success of the Communists in China in 1949, became increasinglyinvolved in Southeast Asia as a counterweight to perceived Chinesedesigns on the region. But, as a conservative Buddhist monarchydominated by the military, Thailand was almost by definition, asociety radically opposed to communism. 246For most of the post-war period, but especially during the1960's and '70's, the CPT operated primarily in rural areas torecruit support among the peasants who were most affected bypoverty. They also exploited ethnic disaffection especially amongLao-speaking minorities in Thailand's northeast, some tribalpeoples in the north (see the section on hill tribes that follows)and the Malay-speaking Muslims in the South. 247In 1965, the first armed confrontation occurred between theThai military and the units of the CPT. In 1967, the CPT organizedthe Thai People's Liberation Army. Throughout their insurrection,the CPT never did gain widespread support among the ruralpopulation. Their campaign involved primarily small, hit and runoperations against isolated police posts, propaganda campaigns in245Keyes op.cit. supra. at p. 107-110.246ibid.247Ibid.119remote villages and ambushes of military convoys. 244But their value to the regime and the military wasconsiderable in terms of justifying repression of rights, keepingthe general population believing that the threat was serious totheir security, and validating the amount of resources syphoned outof the national budget by the military. This was further assistedby the successes of the communists in the countries of Indochina.And some of the fighting there spilled over the border. All of thisadded to the tensions in the 1960's and 1970's and made it all themore difficult for human rights activists and liberal politiciansto prevail. 2°The CPT, which had been conducting an insurrection in thenorth, northeast and extreme south of Thailand, lost foreignsupport in the late 1970's. The Chinese withdrew support in orderto improve their relations with Thailand. The Vietnamese becausethe CPT had sided with China during the Sino-Vietnamese dispute,also withdrew support. 250 But the impact of this change on thefortunes of the CPT was not immediate. Because it was able torecruit several thousand students and intellectuals who had seen itas the only effective alternative to the authoritarian regimeswhich had replaced the brief democratic governments of 1973-76, by1979, the CPT was at the summit of its power in Thailand. Butinternational events, especially the Vietnamese invasion of248Ibid.249ibid.25 eyes, supra at pp. 107-110.120Cambodia and the loss of support from China combined to signal itsdecline. By the late 1980's a successful campaign to bring itsscattered remnants in from the hills, through a general amnesty,guaranteed its virtual extinction. 2513. Thailand's Changing Demographics: Pressures for LibertyEven the Thai military-bureaucratic elite has been unable towithstand the inevitable stresses demographic change and rapideconomic development have wrought on Thai society. The first majorchange that has occurred in Thai society has been the rapid growthin its population since the last war. From 18 million in 1947,Thailand's population mushroomed to near 60 million in 1990. 252While this rapid growth encouraged the government to create aremarkably successful population control programme which broughtdown Thailand's birth rate to a manageable level by the 1980's, theKingdom had gone from being relatively underpopulated to beingoverpopulated. Accompanying this, was the explosive growth whichhit Bangkok and even the main provincial capitals, straining theirinfrastructures to the limit. 253Paralleling this change in its population size was the changein the economic profile of the country. In 1960, 74% of the peoplemIbid.25213.K. Wyatt, Thailand: A Short History, New Haven and London:Yale University Press. 1984. p. 292.mIbid. p. 292.121lived in rural villages and tilled the fields raising primarilyrice. By the 1980's this percentage was dropping to below 50%, withthe other half involved in the growing manufacturing and servicesectors. 254 This reflected the rising importance of theseindustries in the Thai economy. In the late 1980's, for the firsttime tourism eclipsed rice exports as the main foreign exchangeearner for Thailand. 255With the growing urban population and increasing wealth of thepopulation, there was a parallel growth in the Thai middle class.The phenomenal rise in the size of this class has occurred almosttotally since 1960. And for this group, their view of the futurehas been almost completely defined by the access they can have togood education for their children. This keenness to send theirchildren to secondary and higher educational institutions hasitself created a revolution in Thai society. And a further aspectof the middle class's addiction to education has been the equalaccess given to both men and women. Alongside their love ofeducation has arisen a parallel need for upward mobility .256The growth of the Thai middle class in numbers has farexceeded the ability of either the military or the bureaucracy, thetraditional professions for the newly-educated, to absorb them.This has meant that the usual way up the Thai social ladder, has nolonger been a sure thing and this has made them less secure about254Ibid. p. 293.65Year-end Economic Review, Bangkok Post, 1987.256Ibid. p. 295122their social standing. 257 Regarding their social values and howthey view issues parallel to this discussion about nationalattitudes to civil liberties and human rights, David Wyattdescribed them as follows:"The members of this class have a clear interest inpreserving a relatively privileged social and economicposition. At the same time, their formal values --- theliberal values gained from schooling and encouragedthrough their exposure to Western political life---increasingly have made them uncomfortable withauthoritarian military rule and with those elements ofThai cultural tradition they regard intellectually assuperstitious or, by international standards,inhumane."mThe period from 1973 to 1976 brought to a head how much Thaisociety had changed and the new pressures the traditional sourcesof power had to face. Between the 6th and 8th of October 1973, 13Thai students and intellectuals were arrested while giving outpamphlets. Mass student protests in Bangkok erupted over theimprisonment of their leaders, forcing the military government toresign. 259 In characterising the mood of the Thai populace and thetemper of the times, Wyatt wrote:By this time there was widespread agreement on what waswrong with the old system of government: corruption; thesubordination of national interests to military self-interest; arrogant insensitivity to the interests andvalues of other social, economic and social groups;insufficient commitment to and progress toward economicand social reform; and what was perceived as excessive257ibid.258Id..p 296.259Brian Crozier, editor, "Thailand: The Dual Threat toStability," Conflict Studies London and Reading: Eastern Press,1974. p. 3.123dependence on and subservience to America and theWest.mThe heady political climate that was produced by this"revolution" encouraged a brief flowering of freedom. Urban workersand rural farmers got into the fray by organising unions anddemonstrating for increased access to power. Far left organisationswere allowed to operate openly. On the political front, thegovernment held a number of parliamentary elections and no partyemerged a clear winner in either 1975 or 1976. By October, 1976,the students had become increasingly radical in their publicdeclarations. They were depicted in the press as desecrating animage of the Crown Prince and after a broadcast on the army radiostation inciting the people to attack the university andexterminate the communists, a grouping of paramilitary groupsattacked the students at Thammasat University. The violenceresulted in many deaths and some students had to swim the river fortheir lives. 261This brought an end to the coalition government of the timeand the brief revolution in civil rights. Thereafter a successionof governments backed by the military proceeded to demolishwhatever was left of the civil liberties constructed by the electedgovernments. At this time King Bumiphol said over the radio to thenation that the military was crucial to defending the nationagainst its enemies indicating that he viewed the previous years of214Wyatt supra at p.300.124civil liberties to be detrimental to the health of the nation. 262By 1979, with the Vietnamese invasion of Cambodia and theproblems which arose because of it, the people's attention wasdirected to the external threat and the agitation for more freedomswas redirected to the menace presented by an external enemy.4.Thai Buddhism. and Human Rights The main religion affecting Thai society and culture,Theravada Buddhism, must enter any discussion about social andpolitical rights in Thailand since its doctrine has formed the Thaiview of social differences and therefore, place, in the Thai socialhierarchy. 263 National attitudes especially those reflected in theKingdom's stance on such internationally recognised human rightsissues as the rights of women, or children, can be seen moreclearly in terms of Buddhism. Even the Thai view on issuesinvolving refugees and other minority rights can without too muchintellectual manipulation be better understood if one sees them interms of Thai Buddhist thought. 264For those members of the Thai polity other than the Thai-speaking Buddhists, the pervasiveness of Buddhism and its links tothe state-inculcated idea of "Thai-ness" have caused tensions overthe years, especially when the regime has used Thai nationality asa"Ibid f p. 303.125a theme for accentuating ethnic differences. 265Buddhism depends in Thailand on its hierarchy of monks and theunifying tradition that all Thai men must spend at least one rainyseason in the monkhood. 266 The Thai government has a close linkagewith the monkhood and actively sponsors Buddhist organisations.Thai art and literature draw heavily from the nation's Buddhistorigins. 267This linkage of the government and the Royal Family toBuddhist organizations, has presented difficulties especially inrelation to religious minorities like the Muslims in the south ofThailand.Thai Buddhism definitely varies from the teachings of theBuddha and it might be suggested that where Marx regarded religiongenerally as "the opiate of the masses", in relation to Thaisagitating for more freedoms and greater responsibility for theirown affairs, free from authoritarian government, Buddhism can beseen to be Thailand's own unique form of sedation.Most Thais not only believe in much of the scripturalrequirements of Theravada Buddhism, but also believe in a pantheonof spirits which have nothing inherently to do with Buddhistteaching. Hence the widespread use of spirit shrines in front ofalmost every residence in Thailand. Nevertheless, Buddhist clericsGirling supra at p. 215.2 Keyes supra at p. 123.264Ibid.mRefer to Chapter 2, and the section discussing Prprnimr126are involved in sprinkling lustral water on these shrines to purifythem. asa Thais have incorporated their innate love of fun andpleasure into their life pursuits. "Sanuk" or seeking what makesthem happy is, according to the strict letter of what the Buddhataught, in violation of his teachings, of constantly striving torid oneself of such longings for happiness. And in relation to thisdiscussion of human rights, many of these aspects of the Thaireligion, plus the Governments use of it to promote a unified Thaiview, can be seen as detrimental to evolving civil liberties. Thereligion fosters a fatalistic population which accepts its lot andif true democracy is founded on a questioning, intellectually-independent electorate, then Buddhism can be seen to limit thisdevelopment in Thai society.5. Thai Constitutionalism, Law and Human Rights Since 1932, Thailand has had thirteen constitutions. The mostrecent government after the coup, is working on its fourteenth.Generally newly-formed governments have operated without anypretense at constitutionality and in some instances ruled withoutany support from the National Assembly or political parties, usingmartial law to govern. 269 All of the thirteen constitutions wereasaIbid.aftbid as noted on p. 3, that Premier Sarit's government whichhad dominated the first half of the 1960's was replaced by themilitary of government of Thanom Kittikachorn who stayed in powerfrom 1964 to 1973. Only after 5 years in power did Thanom feelconfident enough of his control to hold elections and re-establish127abrogated by military coups. Even when a Constitution prevailed andthe National Assembly operated, elected representatives of thepeople were expected to perform their role within the Thai socialsystem, i.e. as superiors or patrons of their clients who weretheir constituents. Their role as defined in the Constitution ofbeing true political representatives of their constituencies, wastaken less seriously than their function as conduits for ruralpeasants to Bangkok's corridors of power. Human rights issues have,in other words, traditionally throughout Thailand's modernconstitutional history, taken a back seat to bread and butterconcerns. 2'70Thus it can be suggested, in relation to the development ofsound view of human rights grounded in law and practice, Thais havenot been conditioned by history to fight for their own civilliberties. Wongrangan described this phenomenon as follows:"...popular participation of the Thais is quite limited becauseaccording to the patron-client value, they tend to think it is theduty of a good ruler to perform good services for the people bynimselt. 0zn democratic institutions. Even then, in 1971, Thanom staged a coupagainsthirstea4iMhalie,fpliadrstbiprgdenetothiltyliatilb730witexonghis government began arresting students, and causing a bloodydemonstration, did it collapse.270K. Wongrangan, "Reflections on Thai Constitutionalism,"Proceedincts of the International Conference on Thai Studies, Vol.3:Part 1, (Australian National University, July 3-6, 1987). p.128.128government which ensures them stability, order and ultimately asecure haven in which they can carry on economic activities whichwill bring them and their offspring the fruits of prosperity. Thishas meant that for the most part, the sixty years of Thaiconstitutional development has resulted in strong executives(usually military leaders) overseeing rather weak, faction-riddenlegislatures embroiled in bickering over minor administrativematters. The legislatures are usually in session for only about 90day periods, which are then broken by long periods during which themembers politick in their constituencies.mThe most recent history of the Thai Constitution illustrateshow dependent the strength of human rights guarantees expressed byit are, on the ideology of the regime in power at the time. 0 nOctober 6, 1976, after considerable domestic turmoil, with itsorigin in the violent student demonstrations of 1973, thegovernment of Thanin Kraivichien came to power. His regime isgenerally regarded as one of the most rightist of Thailand's post-war governments. He was personally selected by the Royal Family andnis selection sanctioned by a National Administrative ReformCouncil. As Keyes explained, "He was a former Supreme Court273Keyes, op.cit. supra at p. 100.Justice, a member of the Privy Council and an arch anti-communist."mAlthough only in power for a year, he imposed extremelyrepressive policies which used grounds of national security and129especially the perceived growth of the CPT in the countryside asthe reason for the abrogation of rights and liberties. 274On October 20, 1977, after only a year in power the ThaninGovernment was replaced by a coup which installed General KriangsakChomonan as Prime Minister. 275 The new government promised a newConstitution and elections both of which it delivered. The newConstitution was promulgated on December 22, 1978 and made aneffort to guarantee many of the rights and freedoms included in theUniversal Declaration of Human Rights. 276Specifically, the Constitution gave inviolability of theperson the protection of law through Section 28 (right to libertyof person). Section 23 provided for equality before the law for allpersons regardless of sex, race, religion and circumstances ofbirth etc. Section 26 prohibited any form of punishment notprescribed by law and Section 27, guaranteed the presumption ofaccused persons' innocence until they were proven guilty. Section29 set up a legal aid system to provide financial assistance to anyindigent person accused of crime. 277In addition to these sections of the Constitution, whichreflected the language of articles 3,5,6, 7,9, 10 and 11 of theUniversal Declaration respectively, other Thai laws incorporate the274Yearbook on Human Rights:  1977-78, (New York: UnitedNations, 1982). 132.277Ibid.130Declaration's provisions especially as they deal with criminal law.The Criminal Procedure Code sections 134, and 234, prohibit tortureand cruel, inhuman or degrading treatment or punishment. 2T8 Thiscode also requires that persons must be informed immediately upontheir arrest of the charges against them. 29 The Penal Codedelineates five forms of punishment which can be meted out topersons convicted of crimes: death, imprisonment, confinement,fines and confiscation of property. 288Many of the other articles of the Universal Declaration ofHuman Rights were incorporated into Thailand's 1978 Constitution.Freedom of religion was guaranteed by Section 25. Freedom ofexpression and specifically, freedom of the press was protected bySection 34. 281 But freedom of expression was defined by theConstitution in language which left much open to interpretation:Every person shall enjoy the liberty of speech, writing,printing and publication. The restriction of suchliberty shall not be imposed except by virture of lawspecifically enacted for the purpose of maintaining thesecurity of the State or safeguarding the libertiesdignity or reputation of other persons or maintainingpublic order or good morals or preventing deteriorationof the mind or health of the public. 282This guarantee is usually one of the first abrogated in the2781bid.279Ibid.28°Ibid. 133.281Ibid.282 As quoted in K. Wongrangan, op. cit. supra, p. 133.131time of a coup as evidenced by Martial Law Decree #42 which extendsto the Minister of the Interior, not the Courts, the right todecide whether a publication is in conformity with the securityneeds of the state .283Even though the Constitutions have seemed to be paramount,specific laws have overruled them and continue to do so. Forexample, while the Constitution of 1978 guaranteed freedom of theperson and the privacy of dwellings, and reflected the language ofthe Universal Declaration of Human Rights, the Anti-Communism Actoverruled those Constitutional guarantees. This has provoked someobservers like Wongrangan to doubt the strength of ThaiConstitutionalism. As he wrote: "...the constitution in reality isa political means for the elites to have political power on behalfof the people and legitimize the exercise of that power for theirown benefit." 284Freedom of peaceful assembly was guaranteed by Section 36 andFreedom of Association by Section 37. In addition to thoseguarantees, an Amnesty Act was passed specifically to extendAmnesty to members of the unsuccessful coup in 1977 and thestudents who were charged in the uprising at Thammasat Universityin 1976. 285 This Act has been used since to extend amnesty toother coup plotters and members of the moribund CPT during the283Ibid.284Ibid. 134.2115Yearbook on Human Rights,  op. cit. supra. p. 135.1321980's. There is provision as refected in Article 29 of theDeclaration, that derogation from rights and freedoms can beallowed during times of public emergency. 28'Therefore, in relation to civic freedoms, this quick reviewof the recent history of the major social and politicalinstitutions and forces shaping Thai society, illustrates what hasmilitated against the effective development of civil rights andfreedoms in Thailand as they are known and respected in the West.And this must be factored into this analysis of how and whyThailand behaves as it does, when dealing with issues involvinginternational law and in this instance international human rightslaws.III. Social attitudes. Human Rights and Repression of DisadvantagedGroups in Thai SocietyA. The lot of Thai Women in a Patriarchal SocietyThe expression for 'gonorrhea' in Thai is 'rok ying' whichmeans 'woman's disease'. Language is merely one of many clues toindicate that the traditional place of women in the Thai Buddhistworld-view is as the servants to their men .2"28'Ibid. 136.NVW. Burns, "Wife Abuse in Thailand", Bangkok Post. (July, 5,1987) 19. The speaker, a worker with Empower, a group set up toeducate Thai women in the late 1980's, and specifically thoseworking in Bangkok's red light districts was interviewed for thisarticle. She described how Thai society has put at least 100,000133Educating Thai women about their rights is only part of theproblem in a basically patriarchal society. One big obstacle tosecuring respect for fundamental rights and protection in law, isthe reluctance of Thais generally, to speak out. This isespecially true of women. It is viewed as unseemly to causeproblems. Children are taught early the virtue of keeping a coolheart, and in a social climate like Thailand's such an approach isnot without its merits. amBut a cool heart can also mean being apathetic to socialinequities. Expressing a Western view on the relations between thesexes in Thailand usually meets an embarassed silence in anydiscussion on the subject with Thai men or women. This reluctanceto address deeply-held social attitudes about women and their placein Thai society is especially problematic when it comes to change.Prostitution is technically illegal in Thailand but it is endemicthroughout the country. Its place in Thai society is connected withhow Thai men have traditionally been expected to express theirpotency with as many women as possible. This tendency is largely toblame for the widespread HIV epidemic which will have increasinglysevere consequences for the country in the years ahead. 289women to work as prostitutes. Every city, town and village hasworking brothels and fathers in northern villages will often selltheir daughters to agents from Bangkok to pay off their debts.amIbid.UNSee W.Burns and T. Pakmai, "AIDS in the Land of Sabai,Sabai," and "The Burden of a Future with AIDS," Bangkok Post,(January, 22, 1989) p 6-7. Sommatra Troy, a Thai nurse educated in134But it is unfair to discuss the lot of Thai women withoutreference to women in other Southeast Asian societies. In spite ofthe foregoing comments, Thai women have, in comparison with womenin other Asian societies, attained a high degree of freedom. Whilethey must deal with a basically conservative society that dislikeschange, they are undoubtedly moving up into areas of society andpositions of power formerly reserved for men.mEducation has been the most favored route for women to advancethe U.S. and campaigning for greater awareness of the dangers ofAIDS said " It's traditional that Thai men can play around. Justlook around the bars and restaurants. Men are sitting in groupsgetting drunk. And where do they all go after they're drunk --thebrothels. As long as they keep it outside the home, their wives goalong with it. But it's no longer a joke when HIV is being broughtinto Thai homes and infecting wives and potentially theirchildren." In 1989, Ms. Troy led supporters on a march to thebeaches of Pattaya Resort when the U.S. fleet lands for frequentrest stops to protest their exploitation of Thai women.With the new emphasis on liberating the campaign against thespread of AIDS in Thailand, some hard hitting questions are nowbeing asked about many of the time-honoured practices of Thai malesociety. For example, traditionally the Thai form of hazingfreshmen entering universities was to pay a visit to a brothel enmasse. Letters to the editor in Thai newspapers have questionedwhether this practice is not unwise in light of the spreading AIDSepidemic. But very seldom do such letters ponder whether thepractice is wrong because of its inherent exploitation of women.Early in 1990, because of alarming statistics of HIV infectionin prostitutes in the north, the Thai Ministry of Public Healthannounced that prostitutes would be henceforth, tested and issuedan "infection-free certificate" to reassure their clients.In its report on the how the anti-AIDS campaign has sparked adiscussion of male-female roles in Thai society, the Far EasternEconomic Review had this to say: "...opposition is growing to thebias against women in the various campaigns and programs  Chiang Mai's campaign was criticised for focusing too much onprostitutes and largely ignoring their clients. The issue that Thaisociety has avoided addressing is the sexual habits of Thai men:patronising prostitutes is widely accepted behavior."mKeyes supra at p. 124.135themselves in Thailand. Today, the Kingdom's university campusesare filled with women and in such disciplines as law, education,the arts, political science, economics, nursing, medical scienceand commerce, women are often in the majority. In the Faculty ofArts at Chulalongkorn University, the nation's leading university,most of the lecturers and almost 90% of the students arefemale. 21"But Thai women continue to confront legal vestiges of themale-dominated order. For example, any Thai woman who marries aforeigner automatically loses her right to buy property inThailand. But this is not true for rnen. m Rural women are ofcourse the most tradition-bound. But in the 1970's theircooperation with the birth control campaign of "condom king"Meechai Veeravaidya did much to make it a success, bringing down291 But this does not necessarily mean Thai women move intojobs consistent with their education. "Have you ever noticed howmany Thai women university graduates become air hostesses?" asksKeokam Kraisoraphong. Keokam received a CIDA scholarship and iscurrently working on her PhD at UBC. She intends to work as anagricultural outreach worker with fruit growers in the North ofThailand when she finishes her studies. She went on to say, "Thaiwomen are under a lot of pressure from Thai society. They'rebrought up to be good girls and are expected to continue that way.Higher education implies a certain independence and for a male-dominated society like Thailand's, this makes the males feelinsecure. And women who are independent are no longer consideredgood girls. They are showing they have their own ideas, ways ofthinking. But good girls are supposed to go on living under theirmen's rules." Interview in Vancouver, September 7, 1990.mInterview, September 10, 1990., Vancouver, B.0 with SuchitraSinghasene, now a resident of Vancouver, wife of a Canadiandiplomat and mother, who described what happens to the children ofsuch a marriage. "If a male Thai marries a foreigner, theirchildren retain Thai nationality. But if a Thai woman marries aforeigner her children cannot claim Thai nationality and cannotinherit any real estate she might own."136the nation's birthrate dramatically and making the approach a modelfor much of the Third World.A superficial analysis of Thai Buddhism with its all-malemonkhood and the prohibition against any monk touching a womenmight suggest some inherent anti-feminist bias. In fact the reverseis true. Part of the beliefs regarding the genders in Thailand didnot originate with Buddhism but with the pre-Buddhist idea sharedby all the Tai-speaking peoples (the Burmese and Khmer) that womenare linked with the earth and rice. The life-giving qualities ofthe earth and rice are depicted as goddesses, as Keyes states,"While men realize their religious potential by being ordained intothe Buddhist order, women realize theirs by providing alms and foodfor the monks."mThai women do of course continue to play domestic roles,especially in rural areas, but the Thai view of life allows everyindividual regardless of gender, to shape his or her own destiny.Rural life by its nature reinforces traditional roles, with womenperforming the household chores and raising the children. Men stillrun the show, as village-headmen and keepers of the shrines. ButKeyes writes that even this can be deceptive. Women, even in thevillages, break from the norm, becoming successful vendors, primaryschool teachers or nurses in the village clinics. 214While it might be argued that Thailand has given women moremC.Keyes, Buddhist Kingdom as Modern Nation-State, (Boulderand London: Westview Press, 1987),123.214Ibid.137equality than many other developing countries, it has stillvestiges of law which recognize the traditional place of womenbehind their men. Yet Thailand was a signatory to the UnitedNations Charter which states in its Preamble: "...Peoples of theUnited Nations Determined ...to reaffirm faith in fundamental humanrights, in the dignity and worth of the human person, in the equalrights of men and women..." In addition to legalizedinequalities such as women losing their property rights if theymarry non-Thais, there is the social inequity which is manifestedby the enslavement of thousands of women and girls often by theirfathers, in the huge prostitution industry.While Thailand has not received any real internationalattention for its failure to better protect the human rights ofwomen, its record regarding child labour and the rights of thechild, has received attention by international human rightsactivists. During debate on the Draft Convention on the Rights ofthe Child in the United Nations, the Secretary General of theUnited Nations was asked to make a report on the sale of childrenin Thailand and to recommend that the International Law Commissioninvite Thailand to adopt and enforce legislation prohibiting suchpractices. 296In addition, that year, the Sub-Commission of the Economicsand Social Council of the UN, in its report on slavery and slavery-295As quoted in I. Brownlie, Basic Documents in Human Rights,(Oxford: Clarendon Press, 1971), 93.m'UN Yearbook, 1980, (New York: United Nations, 1980), p. 868.138like practices cited Thailand in regards to its record on childlabour. It was pointed out that Thailand has failed to ratify the1973 ILO Convention on the Minimum Age for Admission toEmployment. 297B. Non-Thai Minority Groups and International Human Riahts Law1.Indigenous and Ethnic Minorities a. The Sakai The idea of "indigenous" is not of particular relevance toThailand which defines its peoples according to being Thai or non-Thai. There are nevertheless some small groups of people in themountains in the south of Thailand called the "Sakais" who aredescribed as of "negrito" stock. They only number a few thousandbut they would seem to fulfill the definition of indigenous. 298In spite of their primitive state and low level of educationthese people have expressed a desire to achieve an equal status inThailand. According to researchers who have visited their villagesin the South of Thailand, they chafe over their inability to ownland, denied them by the Thai government which regards them astribal and transient. Many Sakai, as a result, have travelled297Ibid. p. 869mgC. Chullakasa, "The Sakais: The Problem of TheirSettlement," Proceedings of the International Conference on Thai Studies (July , 1987) Vol 3:1. p. 227.139across the border to Malaysia where they have received citizenshipand permanent sanctuary. 299 But once they have done this, they areno longer permitted to return to Thailand. They have also beenconsistently refused Thai citizenship by Thai officialdom becauseas Chullakasa maintains, "...they have no use in the economicdimension of the country.""3 In addition to this there is anapparent suspicion that they may be pawns or spies used by theMalaysian government to foment disruption along the frontier. mMany of these themes used by the Thai government bureaucratswill be seen to be consistent with excuses used to justify theirpolicies regarding the hill tribes in the north.b. The Chinese of ThailandWhile the Chinese minority in Thailand have been assimilatedfor the most part and grown wealthy, they are still distinct andmust be mentioned in any discussion of minorities in Thai culturebecause of their pervasiveness and numbers. They are the mostnumerous ethnic minority group in Thailand. At times they haveendured active repression, for example as cited in Chapter 2 underPremier Pibul, before World War II, when he was cultivating Thainationalism and characterized the Chinese as the "Jews of Asia".The Chinese have played the game well in Thailand, and even intimes where the regime in power is anti-Chinese, they have used140their wealth to negotiate themselves out of a tight corner.In relation to human rights, it can be argued that they do notfigure more or less in the picture, than other parts of the Thaipopulation since for all intents and purposes, they have beenbetter integrated into the Thai scene than any other Chinesecommunity in Southeast Asia and therefore, are no more victimizedby the dirth of genuine civil liberties in Thailand than thegeneral population. While they have been stigmatized, the Chinesein Thailand are successfully integrating themselves into the Thaimainstream, changing their names to Thai names and blending in. AsCoughlin wrote:Recent naturalization laws provide an illustration of thegovernment's point of view. These laws declare in effectthat the mere fact of acquiring Thai nationality, even bybirth in Thailand, is not in itself, sufficient proofthat a person has truly identified himself with theinterests of the Kingdom. Thus it demands furtherevidence of bona fides of both former aliens and second-generation Chinese in the form of government employment,education according to Thai standards, and honourablemilitary service, befor30e granting such persons the fullrights of citizenship .c. The MuslimsThe Muslims in Thailand are made up of two groups. First thereare the Malay Muslims who live in the four southernmost provincesof Thailand and make up a majority of these provinces populations.They are significant in Thailand because they are truly remnants ofan era when Siam controlled the northern Sultanates of Malaya. TheMalay Muslims speak a Malay dialect and are Muslims. They have for302R.J.Coughlin, Double Identity: The Chinese in ModernThailand, (Hong Kong: Oxford University Press, 1960), p. 198.141several decades supported an insurgency which has agitated forautonomy. This has kept the security issue alive along the southernborder, forced the Bangkok government to station the Royal ThaiArmy in strength there, and often cause relations between Thailandand Malaysia to be rocky. 303The other Muslims are resident throughout Thailand, and areeither Thai Muslims, descended from the southern Muslims or aredescendants of Muslims who came to Thailand centuries ago fromIndia and Persia.While freedom of religion is guaranteed in the ThaiConstitution, the religion the state recognizes as the statereligion is Buddhism and to be out of the Buddhist mainstream asthe Muslims are in Thailand is to be on the outside. Nevertheless,the Muslims demand their own schools in the south, maintain mosquesand would seem to have a great deal of freedom. Laws such as thefamily law of Thailand which was codified in the Civil andCommercial Code, were drafted to incorporate Islamic law cognisantof the wishes of the Muslims in the South. 304d. The Hill Tribes of ThailandScattered through the hills of Northern Thailand, are villagespopulated by over twenty different tribal groupings, each with its303M. Alagappa, Australian Journal of International Affairs,op.cit. at. p. 9.30414.B. Hooker, Legal Pluralism:An Introduction to Colonial andNeo-Colonial Laws, (Oxford: Clarendon Press, 1975), p. 378.142own history, dialect and ethnic characteristics. 305 It isestimated that the tribal peoples in the North number about 300,000people although it is difficult to pin down how many people thereare exactly because of a constant inflow and outflow across theborders with Burma and Laos. 3" There has also been a remarkablyrapid increase in the population of the tribal peoples in recentyears because of a high birth rate, a fall in the mortality rateand emigration into the hills from the lowlands. Some tribes likethe Hmong, for example are increasing at 3% to 5% per year. Thisis, for the first time in their history putting pressure on theThailand's hill tribes because of overpopulation. 307The hill tribes are relevant to this discussion of humanrights law and Thailand's national policies for a number ofreasons. First of all, while they are not numerically significantbeing less than 1% of the Thai population, they have become themajor preoccupation for security reasons in Thailand's northernprovinces. This brings up how they are perceived by Bangkok whichfirst of all, denies them citizenship and land rights, and thenquestions their loyalty to the Thai monarchy. J. McKinnon describedthis conundrum the tribal peoples are placed in as follows: "Theyare not citizens because we cannot be sure of their loyalty and305The Hill Tribes of Thailand, Technical Research Paper,Tribal Research Institute, Chiang Mai, 1976.306G. Young, Hill Tribes of Northern Thailand, (Bangkok: TheSiam Society, 1962), iii.NWP. Kunstadter, "Highland Population in Northern Thailand,"Highlanders of Thailand, J. McKinnon and W. Bhruksasri, (eds.)(Kuala Lumpur: Oxford Univ. Press, 1983). 42.143because they are not citizens, we cannot be sure of theirloyalty . gg 308In addition to the security concerns which have dominated thepolicies of the central Thai government in dealing with the tribessince they began to take notice of them in the 1950's, the othermajor problem that has also brought in international involvement isthat of narcotics and more particularly, opium. 309In 1966, the Thai government requested United Nationsassistance in helping to replace opium as the main cash crop forthe hill tribes. 310 Opium is not a recent phenomenon inThailand's northern hills. It is a leftover largely of European19th Century colonialism. Therefore, the economy of the North to alarge extent, and this includes large parts of Burma and Laos aswell, depended on growing, processing and selling opium for over acentury . 3" At the time that the UN came to Thailand's assistancein its crop replacement program, opium was the mainstay for anestimated 45% of the tribal population in Thailand's northernhills. 3" The lengthy history of opium cultivation in Thailand's3 )8,7. McKinnon and B. Vienne, "Critical Words for CriticalDays," Hill Tribes Today, (Bangkok: White Lotus Co. Ltd., 1989),xxii.NN. Bhruksasri, "Government Policy: Highland EthnicMinorities," J. McKinnon and B. Vienne, (eds.) Hill Tribes Today,(Bangkok: White Lotus Co. Ltd., 1989), 25.3"Ibid.3 11J. McKinnon et al, "Critical Words for Critical Days, " Hill Tribes Today, xxi.3"Ib id.144north is one reason it has been difficult to stamp it out. But theother major reason is that it is an ideal crop for the hill tribes.It has high value for the weight produced. The price is rising. Itgrows well in the soil, moisture and other conditions of the hills.And it can be grown almost anywhere. 313 Nevertheless, aninternational convention banned it and pressure has been onThailand ever since, to work on crop replacement programs. Thiscampaign has now been going on for several decades. TheInternational community has spent millions on these programs sincethey were inaugurated, but opium is still grown in the hills albeitat a much reduced rate. 314In the year 1966/67 when the programs came into force in thehills, the crop yield in Thailand was estimated at 150 tons. By1986/87, this was estimated as having been reduced to 25 tons. 315It has even become a question whether this success in reducing thecrop yield might be detrimental to Thailand in the long run sincethe programs have still not stamped out opium addiction in thehills and an estimated 30 tons is needed by the tribes to maintantheir current consumption levels. So this might force Thailand tobecome a net importer of opium. Or worse, encourage tribes to useheroin as a substitute. 3163"Ibid.314Ibid.315W. Bhruksasri, "Government Policies: Highland EthnicMinorities," p. 25.316Ibid.145The other major problem relates to the ecology in the hills.Because of "swidden" cultivation techniques, otherwise described asslash and burn, the tribes have been blamed for a drasticdeforestation of the hills in the north of Thailand. Traditionally,tribal villages establish themselves in one locale, cut down thetrees to clear fields for their crops, primarily opium, and remainin that location for about 10 years until the soil is depleted ofnutrients. 317Whether the highlanders are in fact the real or only culprits,is a moot issue. 318 But deforestation in the hills there is. Andthe central government has portrayed this as yet another of itsmajor concerns regarding the tribes, since authorities now blamethis deforestation for everything from desertification in thenorth, a drop in rainfall and a resulting change in the climate, toa threat to the national watershed through erosion of the hills,silting of the waterways and drastic flooding during themonsoons. 319In order to solve these problems of security along itsnorthern frontiers with Burma and Laos, narcotics and ecologicaldegradation, the Thai Government has instituted numerous projectsand brought into play many agencies, some of them international, to317J. McKinnon et al, "Critical Words for Critical Days," Hill Tribes Today, xx-xxi.318Some sources blame lowlanders who have moved into the hillsin recent years, and illegal loggers who fell trees in park landsand use the highlands as the scapegoats. The Bangkok Post haswritten extensively on this issue. Articles in author's files."'Ibid., xxi.146deal with the hill tribes. In reaction to international pressure,the Thai government passed the Opium Act in 1958 which made theproduction, consumption and sale of opium illega1. 320 In 1959, thegovernment formed the National Hill Tribes Welfare Committee andset in place detachments of the Border Patrol Police (BPP) toconduct surveillance along the border, but especially tofamiliarize themselves with the tribes and locate the villages,many of which were not even known to the government at thetime . 321These efforts came after decades of governmental indifference.While the governments of Burma and Laos were conducting campaignsacross the border to control the own restive provinces populated bytribal peoples, Thailand left the area relatively untouched. Thismeant that many tribal people from Burma and Laos moved intoThailand where they could live without as much governmentinterference. By the 1950's both because of the internationalpressure regarding opium, but also because of its uncertaintiesregarding its northern borders, with China only a short distanceaway, the government in Bangkok decided to improve on itssupervision of the northern provinces. 322In the 1960's because of fears that the Communist Party ofThailand was finding converts among the tribes, the government setIN)N.Tapp, White Hmong: Sovereignty and Rebellion: The WhiteHmong of Northern Thailand, (Singapore: Oxford Univ. Press, 1989),31.321Ibid.322Ibid. 32.147up units of the BPP to construct airstrips throughout the northnear tribal villages and begin surveying the area. Local tribalpeople were trained in first aid and given political indoctrinationin "Thai-ness and loyalty to the King". At this time the CommunistSuppression Operations Command was put into operation to take overthis task from the BPP because of a Government White Paper whichdescribed the tribes as vulnerable to the CPT because of theirprimitive social structure, the inaccessibility of theirsettlements and their status as ethnic minorities outside themainstream of Thai life, society and culture. 323This campaign and intrusion of troops into the insular livesof the tribes did not go smoothly at first and heavy-handedmilitary intervention, on one occasion resulted in violenceespecially in Hmong villages. A Hmong village was burned whichresulted in retaliatory acts of violence against government troopsand installations. The problem escalated until the centralgovernment was characterizing it as a full scale insurgency. Somevillages were bombed from the air. Napalm and heavy artillery wereused and even local Chinese and Akha tribal militia were mobilisedprimarily against the Hmong. As Tapp observed, "It was at this timethat the government most clearly revealed its fears of insurgencyamong the non-Thai minorities and a policy of assimilation towardIthem. ,, 324Fortunately saner minds prevailed on both sides and the323Ibid. 34.324Ibid. 36.148fighting subsided. The government was prevailed upon to deal withthe deeper issues and problems of the peoples in the hills byinstituting more sophisticated solutions. One of the moresuccessful programs from the Thai government was set up by HisMajesty the King to encourage crop replacement. This program hasdone much to bring unique crops to the north and wean many of thehighlanders from their dependence on opium. Internationalinvolvement of Missionary groups and National Assistanceorganisations from countries like Germany and the United Stateshave also made an important contribution. The Joint U.N./ThaiProgramme for Drug Abuse in Thailand (UNPDAC) 1971 was one of thefirst international programs set in motion and hundreds havefollowed. 325Assessing the success or failure of these myriad projects isdifficult. For every problem cited as affecting the hills, whethersecurity, narcotics or land degradation, there is a project focusedon an aspect or aspects of these overlapping concerns. And theprojects have erected a mini-industry unto themselves with theworkers in the projects and researchers, having a vested interestin defending the integrity of their approach to the particularproblem they are confronting. McKinnon said the following:Projects are attempts to solve well-recognized "problems"and the funds allocated to ameliorate these provide aliving for many. All projects have answers which theyconsider the best and do not welcome criticism fromoutsiders engaged in different work who have the audacity325N. Tapp, White Hmnong, p. 32; J. McKinnon, Hill TribesToday, p. xxvi.149to assume they know better. 326Up to 1980, the policy of the Thai government was to deal withthe three main problems described previously which relate to thehill tribes using projects focused on these problems. During the1980's, the policies have been in some senses, assisted by thesudden emergence of the tribes as a tourist attraction. Wherebefore, the Government had to be assisted by internationalorganisations and foreign aid, to push roads and airstrips into thehills to increase the accessibility of the tribes, this decade oftourism development has added the funds of the hungry local touristindustry. 327At first glance this rapid development of the hill tribes asyet another attraction on the list of "must-sees" in a tourist'sitinerary, might seem to be merely an innocent offshoot of themania for foreign exchange earnings. But the tourist development ofhill tribe villages has been orchestrated from the beginning by theTourism Authority of Thailand, which is a state enterprise. It hasencouraged the idea of seeing a group of people, "untouched bycivilization" which has the effect of bringing the most remotevillages within reach of the treks organized out of Chiang Rai andChiang Mai. 328 This has guaranteed that tourists in pursuit ofthat illusory ideal, the completely primitive, the unspoiled, have326McKinnon, Hill Tribes Today, p. xxvi.WE. Cohen, "Hill Tribe Tourism," Highlanders of Thailand, J.McKinnon and Wanat Bhruksasri, (eds.) (Kuala Lumpur: Oxford Univ.Press, 1983),308.328Ibid. 309.150brought villages previously inaccessible and relatively autonomousfrom mainstream Thai culture, firmly into the Thai reality. 329Previously, projects for crop replacement were aimed atgetting thethe tribes to settle and slowly be inducted into theThai economy through producing and marketing crops saleable in thegeneral Thai economy. Now with the advent of tourism development,the tribes are being brought abruptly into the internationaleconomy and it is having some profound effects on their culturesand ways of life. 330Economically, they have benefitted from selling theirhandicrafts, hosting tourists in their villages, selling them foodand meals, and begging for handouts. 331 This last "benefit",resulted from the earlier habit of tour operators giving villagersgifts when a tour group would arrive in their villages. As toursbecame more organised and permanent facilities were established inthe villages, the operators ceased giving the gifts out to thegeneral tribal population but instead, paid those tribespeopledirectly involved with providing services to the group. But theexpectations for handouts had been created and begging can belinked to this. 332There has been the inevitable disruption of a basicallysubsistence economy brought suddenly into contact with the329Ibid. 318.330Ibid. 323.331 Ibid. 320.332Ibid. 323 .151consumerist Western market economy with all its "blue jeanglamour". This has done to the tribes what such exposure has doneto other indigenous groups elsewhere in the world: made them viewthemselves as objects, wearing their traditional dress asentertainers for tourists, and using Western apparel as theireveryday wear. Their own view of themselves as objects, as subjectsfor photos without valid identities of their own has produced asinister diminution of the tribespeople's sense self worth. 333 Allthe symptoms so well known in North America, of a people who havebeen deprived of a sense of their own identity, is now beingevidenced in the hill tribes. But then as Cohen wrote:"...problems are too often overlooked by those who judge success oftourist development, merely in terms of the cash income itgenerates. "334And underlying all the problems cited is one involving humanrights and law. Even though many of the tribal peoples in the northhave been described by anthropologists as probably pre-dating thelowland Thais themselves in the time they have inhabited Thailandproper, particularly the Lawa peoples, the tribes people are forthe most part denied citizenship. 335 Other than those tribes thathave historically resided in Thailand, even the children of thetribes born in Thailand are not given citizenship automatically.The current policy would appear to be that, if the tribes people333Ibid. 323.334ibid.335G. Young, Hill Tribes of Northern Thailand, p. 51.152become "Thai", abandon their culture, animist religious practicesand transient ways, learn the Thai language, then they haveindicated their openness to being assimilated. Once that isaccomplished the cherished status of Thai citizenship perhaps willbe granted. Article 1 of the Thai Constitution says that theKingdom is "... a unitary state and shall remain undivided." 336But this basically assimilationist policy of the government hasbeen criticized by international anthropologists who see suchpolicies being in violation of international human rights. 337Some observers also suggest that the government and its agencieswould probably prefer that the tribes were not even in the landsthey occupy and wish they would go back where they came from. 338In demanding that , the hill tribes must abandon theircultures, in order for them to be given rights of citizenship andland title, the Thai government would appear to be in violation ofthe spirit if not the letter of the following covenants ofinternational human rights law. First the Universal Declaration ofMN. Bhruksasri, "Government Policy: Highland EhnicMinorities" as previously noted, at p. 25.337Ibid.338As McKinnon puts it in his introductory article at pp. xxxxi, in Hill Tribes Today  as noted previously:The Royal Forestry Department if not the state wouldprefer the highlands be unencumbered, to be unoccupied.This is difficult to achieve but the wish survives. Thestate has yet been unable to extend citizenship to alarge number of highlanders many of whom were born inThailand. Then again like most South East Asian nations,it denies "tribals" land rights over which is consideredto be public domain.153Human Rights in Article 15 guarantees every one rights tonationality and the protection of the state. It also guaranteeseveryone the right to own property as in Article 18, but Thai lawprohibits non-Thais from owning property which when citizenship isdenied the tribespeople, effectively denies them the right to ownthe land they occupy. 339The Convention on the Reduction of Statelessness, 1961declares that, "...a contracting state shall grant its nationalityto a person born in its territory who would otherwise bestateless". 3" While this Convention has not been widely signednor ratified, it did result from a vote in the U.N. GeneralAssembly and recognizes the necessity of at least granting to thoseborn in a state, its nationality. Even if the continued reluctanceby the Thai government to grant the tribes Thai nationality isfollowed to its logical conclusion and the hill tribes people areaccepted as "aliens", there is still an accepted minimum standardinternationally that a state's municipal law must accord so-calledaliens within its borders. ml If applied, the internationalprotections for aliens would certainly apply to those hill tribeswho may have only recently arrived in Thailand.2. Refugees and International Law: the Thai experience. 339AS quoted in I. Brownlie, Basic Documents in Human Rights,(Oxford: Clarendon Press, 1971), p. 109-110.°U.N. Document A/CONF. 9/15, 1961.34°C. Amerasinghe, State Responsibility for Injuries to Aliens(1967), p. 44.1541. HistoryThailand has long functioned as a haven for people on the runfrom their usual homelands. The recent history of refugees inThailand has brought to the world's attention the plight of thepeoples fleeing persecution from the countries of Indochina. Butfor a variety of reasons, Thailand has been taking in people fromneighbouring countries for centuries. As early as 1776, fleeing awar in what was then referred to as Cochin China, now the northernportion of Vietnam, people fled to what was then the Kingdom ofSiam and its relative calm. In that century and the next, similarinfluxes occurred from both Laos and Cambodia and in the majoritythese people became part of Siam, their descendants populating therural areas of Thailand's northern and northeastern regions, tothis day speaking dialects incomprehensible to the majority ofThais. 342The next major upheaval in the region which disrupted thestability provided by almost two centuries of colonialism andEuropean domination of regional politics was of course the SecondWorld War. Thailand was invaded and occupied by the Japanese. Butbecause of the pragmatic approach of its leaders who sided with the"invaders" for most of the war, and Thailand's status as the onlyindependent state in Southeast Asia at the time, it emerged fromthe war with its social institutions , economy and governmental342Indochinese Refugees: Asylum and Resettlement, (eds: SupangChantavanich and E. Bruce Reynolds), Institute of Asian Studies:Chulalongkorn University, Bangkok, 1988, p. 1.155infrastructure relatively intact. 3"But around it, its neighbours did not fare as well under theJapanese. Their economic infrastructures had been plundered by thewar. Also their basic governmental and social institutions weretorn apart by the conflicts that arose in the vacuum created as thevarious colonial powers slowly relinquished control of theirIndochinese and South East Asian possessions.In the Indochinese countries especially, and Vietnam inparticular, the anti-colonial forces aligned themselves with theSoviet Union and the newly emergent People's Republic of China. Thewar that erupted with the French eventually forced up to 50,000Vietnamese to flee into Thailand. 3" They are still cited asexamples of why Thailand has taken the stand it has on refugees,and its fears regarding refugees as threats to its nationalsecurity. 365At the time, Thailand was sparsely populated having about 14million people at the end of the war. Its rural areas still hadland available for settlement and these new arrivals could beabsorbed with not much disruption to the status quo. The Vietnameseinflux was part of what has been characterised as the first wave ofrefugees in Thailand since the war. Other components of this wavewere remnants of the Kuomintang Army of the Nationalist Chinese who343Refer to a discussion of the period in Chapter 2, p.344Id . p.5346See Supang Chantavanich, "Introduction," IndochineseRefugees: Asylum and Resettlement, (Bangkok: Institute of AsianStudies, 1988) 1-10.156arrived and set up communities in Thailand's north from 1950 to1959. With General Ne Win's victory in Burma in 1959, severalthousand Burmese added to this wave. 346Largely because of the numbers of displaced persons fleeingtheir countries around the globe at this time, the member states ofthe United Nations, of which Thailand was one, attempted toenshrine into international law, a statement articulating what wasmeant by the term "refugee". On July 28, 1951, the InternationalConvention Relating to the Status of Refugees (hereinafter referredto as the Refugee Convention) was open for the signatures ofparticipating states. It defined a refugee as:[a person who] owing to a well-founded fear of beingpersecuted for reasons of race, religion, nationality,membership of a particular social group or politicalopinion, is outside the country of his nationality and isunable or, owing to such fear, is unwilling to availhimself of the protection of that country: or who, nothaving a nationality and being outside the country of hisformer habitual residence as a result of such events, isunable or, owing to such fear, is unwilling to return toit. M7But Thailand has neither signed nor ratified this accord. M8This has effectively placed Thailand outside the obligationsimposed on the signatories since international law has long34 Suteera Thompson, "Refugees in Thailand," Southeast AsianExodus: From Tradition to Resettlement, E.L.Tepper, (ed.) CanadianAsian Studies Assoc., 1980. p. 125.34TThe International Convention Relating to the Status ofRefugees, opened for signature July 28, 1951, 189 U.N.T.S. 150[hereinafter Refugee Convention]. Up to now 96 states have becomeparties to the Convention. See also Protocol Relating to the Statusof Refugees, opened for signature Jan.31,1967, 19 U.S.T. 6223,T.I.A.S. No. 6573, 606 U.N.T.S. 267.348Ibid157recognised if a state does not sign a human rights covenant it isnot bound by it. 349 International law has even extended thisfurther, realising that if a signing state chooses not toincorporate the rights protected by an international covenant intoits own legal system, such a state is not bound by the covenanteither.mWhile the Refugee Convention aimed at providing protection forrefugees and defining their basic rights and freedoms, it wasfettered by the relatively narrow definition of "refugee" uponwhich the member states agreed. 351With its history of accommodating previous influxes ofrefugees and its relatively peaceful situation surrounded byturmoil in neighbouring states, it was inevitable that Thailandwould continue to receive a spillover of people fleeing war oreconomic deprivation in their home countries. But the refugeesituation that faced Thailand with the fall of Saigon to NorthVietnamese forces in 1975 was more than it had ever dealt withbefore. This victory combined with the subsequent victories of thecommunist Pathet Lao in Laos and the Khmer Rouge in Cambodia,S#D. Sanders, "The Emergence of Indigenous Questions inInternational Law", Canadian Human Rights Yearbook, p. 24.35°Ibid.351The International Convention Relating to the Status ofRefugees, Article 1(2) defined a refugee as any person who"...owing to a well-founded fear of being persecuted for reasons ofrace, religion, nationality, membership of a particular socialgroup or political opinion is outside the country of hisnationality and is unable, or, owing to such a fear, is unwillingto avail himself of the protection of that country..."158produced a massive wave of Vietnamese, Laotian and Khmer refugeeswhich began flooding into Thailand primarily by land, but manyVietnamese also began to arrive by sea. 352The first part of this wave was made up mostly of Lao andHmong 166,000 of whom fled into Thailand from April, 1975 toSeptember, 1979. There was a second wave of Vietnamese after thefall of South Vietnam in 1975. This was followed by a third wavemade up mostly of Khmer refugees from Cambodia in 1979, followingthe Vietnamese invasion and takeover of Phnom Penh. mCambodia had become an independent kingdom in 1953 under therule of Prince Norodom Sihanouk who struggled to maintain hisnation's neutrality throughout the Vietnam war. The United Stateswas a key player in Cambodian politics and in 1970 when the Lon Nolclique overthrew Prince Sihanouk they received U.S. support. Thecommunist Khmer Rouge were still able to gain power in 1975 andunder their leader Pol Pot, they proceeded with their infamouspolicies like the mass evacuation of the capital and theeradication of the civil bureaucracy. It has been estimated that 3million Cambodians died as a result of these policies. 351'The waves of Cambodians fleeing their homeland numbered inexcess of 500,000 people and put enormous burdens on Thailand'sborder areas. The Thais living in the area along the CambodianMRS. Chantavanich, "Introduction," Indochinese Refugees: Asylum and Resettlement, (Bangkok: Chulalongkorn Institute of AsianStudies, 1988) 6-8353ibid.Shawcross, The Quality of Mercy, 63 (1984).159border were displaced and became increasingly resentful. 355But part of the problem of the this third wave of "illegalimmigrants" as they were described by the Thai Government, was thatthey were technically, outside the jurisdiction of the UnitedNations High Commission for Refugees, and were not underinternational law, necessarily within the definition of "refugee".There were an estimated 200,000 Cambodians who fall in thiscategory, outside the UN definition, and in 1989, they were strungstill along the Thai-Cambodian border, sometimes on the Thai sideand in times of calm, moved back to Coalition for a DemocraticKampuchea (CDK) bases on the Cambodian side. 3562. Cultural and Political Background to the Refugee ProblemThais have never taken kindly to outsiders and even theIndians who have settled in Thailand for centuries, with somefamilies able to trace their origins back to Ayuthaya, still resenttheir designation in Thai, as "kon kaek" meaning "guests". 357There are no individual expressions for "exile, migrant or refugee"in the Thai language. Any expression that comes close to being355C. Fieman, "A State's Duty to Protect Refugees UnderCustomary International Law: A Case Study of Thailand and theCambodian "Displaced Persons" Columbia Human Rights Law Review,21(1989):292.356A. Pongsapich and N. Chongwatana, "The Refugee Situation inThailand," Indochinese Refugees: Asylum and Resettlement, (Bangkok:Institute of Asian Studies, 1988), 13.357W. Burns, "The Indian Minority of Thailand," Bangkok Post. November, 1989.160appropriate also includes the connotation of permanent residencewhich Thai governments have been very insecure about eversuggesting, given the scarcity of resources available to their ownpeople especially in the border areas. 358In order to appreciate the background to the refugee problemin Thailand and its reactions to criticism from the internationalcommunity and conflicts with international law, the lessons ofhistory should be borne in mind.The Kingdom of Siam had a long rivalry with Vietnam both inLaos and Cambodia, which even pre-dated French involvement in theregion. In fact the French used this rivalry to offer "protection"from Bangkok to the courts of Laos and Cambodia. 359 As mentionedin the preceding chapters, both Laos and Cambodia were historicallyvassal states and paid tribute to the Siamese kings throughout thecenturies until they both became incorporated into FrenchIndochina. The Kings of Cambodia had even been crowned inBangkok. 15° As subject peoples, Laotians and Cambodians were noton an equal footing with Thais in the Thai view. Even today mothersof newborn infants will describe them as "black as Cambodians". Itis a common reaction to anyone praising their offspring, to wardoff evil spirits which might steal the baby. 361 But it indicatesmShawcross, op. cit. supra. at p. 82.359A.L. Moffat, Mongkut, the King of Siam, (Ithaca: CornellUniv. Press, 1962). 113.Iftbid. 112.34°W. Klausner, Conflict or Communication, (Bangkok: Businessand Research Co.Ltd., n.d.). 111.161how ingrained these traditional and historical attitudes are in theThai reaction to the peoples of the region.Even the plundering of refugee boats and the raping ofVietnamese women by Thai fishermen can be partially explained bythis historic rivalry between the two states and the view of themas social inferiors. To defile their women is justified to bringshame on them as beneath them as Thai. While it might be true thatas Helton maintains, "...[a] basic measure of a civilized societyis the way it treats strangers" , w Thailand's failure to providea level of protection to refugees consistent with international lawhas historic, cultural and political reasons which must beunderstood first before making loud condemnations.Politically, the refugee problem has arisen because of thecomplicated international politics of Indochina, and the competinginterests of China, the Soviet Union and the United States whichhave used Thailand, Vietnam and the warring factions in Laos andCambodia as their proxies. 363 In the conclusion to his descriptionof the tragic history of Cambodia, the refugees and the massacre ofmillions, Shawcross ended by putting the blame on Vietnam as theprimary instigator of the tragedy. 3643. Current situation with Refugees362A.C. Helton, "Asylum and Refugee Protection in Thailand,"International Journal of Refugee Law, Vol 1:1, 1989. 20.3153Ibid. 21.364Shawcross, supra at p.403.162Since 1975, over one million Indochinese have enteredThailand. 365 Of that number, an estimated 700,000 had beenresettled in third countries with the United States taking about378,000 up to 1986. 366 Thailand has been closing a number of thecamps that were operated to accommodate the first asylum refugees.Also, while trying to improve the situation through betteringrelations with Vietnam, Thailand is still having to deal with thearrival of Vietnamese by boat on its Gulf of Thailand coast. 367 Ithas therefore declared as government policy, pushing the Vietnameseboats back from the shore where they land. This has resulted inloss of life, and a further rise in incidents of piracy. 368In addition to the forced refoulement of Vietnamese "boatpeople", there have been reports of the forcible return of Laotianmigrants who have been held and then forced back over the Mekonginto Laos. In 1985-86, an estimated 27,000 Lao arrived in Thailand,allegedly because of the Laotion government's imposition of newtaxes and military conscription. This coupled with a perceivedincrease in Western resettlement at the time, were the reasonscited for this surge in Lao emigration. 369It is now difficult to accurately estimate how many refugees155A.Pongpanich et al, supra at p.15.366S. Chantavanich, supra at p. 6.wSee A. Helton, "Asylum and Refugee Protection in Thailand,"International Journal of Refugee Law, Vol 1:1, 1989, pp41-46 for abibliography of sources and discussion of current Thai policy.WA Pongpanich supra at p. 13.163and non-registered Cambodians and Lao are resident in Thailandbecause the situation is in such a state of transition. With thehalt of the civil war in Cambodia and the stabilisation of thesituation there, it is certain more and more people along the Thaiborder will filter across to return to their homes and villagesonce they no longer fear for their safety.With Vietnam's open door economic policies, greater prosperityand optimism, better relations with Thailand, and bilateralagreements with its neighbours to curb the exodus of its people byboat, it is to be hoped the Thai policy of forced repatriation ofthe boat people will not be continued.4. Thai Refugee Policy and International Law. It is undeniable that the refugee situation in Thailand wasnot welcomed by the Thais. In most respects, they did nothing toencourage the situation. As Shawcross pointed out, while they wereactive with the United States in attempting to prevent communistvictories in Indochina, after 1975, with the fall of Saigon,Thailand went through a shift in policy which resulted in theAmerican withdrawal from their bases in Thailand and the Thais wereanxious to reach a modus vivendi with the Chinese and the newregimes in Indochina.At first, with the beginning of the Cambodian influx in 1979,the Thai government under General Kriangsak Chamanand authorizedthe Thai security forces to force the people back over the border164which resulted in much loss of life. 370 This action provoked aninternational outcry which Thailand reacted to angrily. TheVietnamese boat people were pouring into the other countries ofSoutheast Asia at this time and in some instances being turnedback. The United Nations convened a Geneva Conference on theIndochinese refugee situation in 1979, and produced pledges fromcountries like the United States, Canada and France forresettlement places. 371The refugee situation produced an enormous influx ofinternational organisations into Thailand into the camps which wereeventually set up. Thailand was forced to deal with the resultingsocial, economic and political problems for what it regarded ashumanitarian reasons.m During the initial phase of the problemin 1979, General Kriansak was under pressure from the Thais alongthe border and the Thai military to deal with the problemeffectively, which meant in some instances, violating internationallaw on "non-refoulement" and sending the refugees back. In additionto this pressure, other first asylum states in the region were alsoforcing boat people back to sea, so Thailand was not alone in thisattitude. Irs In addition, in spite of international law, GeneralKriangsak was under pressure to confront the Vietnamese who hadinvaded Cambodia and were moving quickly toward the Thai frontier.INIShawcross supra at p.84-94Ir2Pongsapich et al, supra at p. 36.mShawcross, supra in note 100.165There were factions in the Thai military who wanted to cross intoCambodia and confront the Vietnamese directly. 374In other words, this episode which continues because refugeesare still living in Thailand has been one with no easy solution.International law while finding certain of Thailand's actionswanting, most particularly its forcible repatriation of Cambodianrefugees in 1979, has not been of much assistance in findingsolutions. And only now, with the easing of the conflict inCambodia and Thailand's participation in that nation'sreconstruction, is there hope that the refugees or "illegalimmigrants" as Thailand has consistently dubbed them, will returnto their homelands voluntarily.Thailand reacted to international law and organisationscharacteristically. It was not a signatory to the Convention orProtocol. It was therefore outside its requirements. Nevertheless,it was subject to international customary law on non-refoulementwhich is accepted as being part of general international law.mIts most recent policies to push Vietnamese boat people back out tosea, as cited at the beginning of this section, violates theBrussels International Assistance and Salvage at Sea Convention of1910. This together with Article 98 of the 1982 Law of the SeaConvention (discussed in more detail in Chapter 5), which Thailandhas signed although not ratified, binds Thailand to international374Ibid.375G.S. Goodwin-Gill, The Refugee in International Law, (1983).74-8.166law which requires that refugees must not be turned back atfrontiers or on a nation's coasts. I76 International law requiresthat refugees must be accorded first asylum and allowed a fullexamination of their status under the Convention. 17In addition to customary international law respecting non-refoulement, it can be argued that Thailand has violated andcontinues to violate international law on the rights of aliens. TheInternational Court of Justice has upheld the rights of aliens inthe Barcelona Traction and Light Co, case by stating that Statesare obligated to accord certain rights to aliens who have beenaccepted within their borders.The Universal Declaration of Human Rights which Thailand hasacceded to, prohibits arbitrary and prolonged detention in Article9. Article 13 also guarantees everyone "...the right to freedom ofmovement and residence within the borders of each state". 379This analysis consistent with its original premise that we canlearn much about a nation according to its reactions tointernational law, illustrates the following about Thailand'snational behaviour relative to international law as it relates torefugees.Thailand has been at the outset of the refugee crisis in the376Helton supra at p. 40.377Ibid.8I.C.J. Rep., 32.379Universal Declaration of Human Rights, G.A.Res. 217A (III),UN Doc. A/810 (1948).1671970's, preoccupied with internal political turmoil. The CPT wasstill active and actually at the apogee of its success. Studentdemonstrations brought down two governments and the military hadbeen influential in having civil liberties drastically curtailed in1976. General Kriansak Chamanand who came to power in 1977, was amoderate relative to his predecessor but was still faced withpressure from the military to enter Cambodia, as well as domesticpolitical pressure to forcibly repatriate the waves of refugeesarriving in Thailand especially in 1979, primarily to deter others.Thailand therefore reacted to the increasing refugee problem byforcing refugees back. This definitely contradicted internationallaw. But in the context of the times, and its cultural reaction tooutsiders, it is understandable.Subsequent to this, Thailand was condemned by a number ofInternational agencies and its cultural reaction to this was atfirst one of outrage but eventually, with more moderate pressurethrough the UNHCR, it allowed a large influx of funds, food andresources to deal with the refugee problem. This change can beexplained cynically as showing how officials and the military sawthis international effort as a potential source of funds andprestige. It also can be argued that strategically, this massiveinternational presence militated against sizeable Vietnameseincursions across the border.But it has to be concluded , that international human rightslaw would appear to have only moderate influence on Thailand'snational behaviour especially as it relates to the refugee168situation. Humanitarianism has entered the rhetoric to characterizeThailand's behaviour. But Thailand has at the same time hinged itsacceptance of the refugees and their accommodation on theireventual resettlement elsewhere. In other words it has not acceptedthe inherent right of refugees to protection, irrespective of othernations policies on resettlement. While it shares this stance withother nations in Southeast Asia, it still does not obviouslyrespect this independent human rights principle. 315°Whatever its stance, the refugee situation has not been ahappy interlude for Thailand. As Khien Theeravit stated:Thailand has felt pressure from various sources: thehostile governments that pushed out the refugees, some ofits own people who put security considerations abovehumanitarianism, some serious reporters concerned onlyabout freedom of the press, some vocal human rightsactivists who aggressively demanded all universal rightsbut ignored all responsibilities, some representatives ofinternational organisations who often thought that theirmoney and the worthiness of their cause could overrideall sovereign rights... 3mSummaryIt can be said that Thailand has been somewhat affected byinternational human rights law and, based on the examples presentin this analysis, modified its behaviour and its laws accordingly.Many of the articles of the Universal Declaration of Human Rightswere incorporated into the 1978 Constitution. It remains to be seenif this will be followed in the Constitution which is currentlyml° ltHe on supra at p. 45-6.3111K. Theeravit, "Conclusion: Problems and Solutions,"Indochinese Refugees: Asylum and Resettlement, (Bangkok:Chulalongkorn Institute of Asian Studies, 1988), 397.169being discussed.Culturally Thailand would seem to react to outside pressurelike the individual Thai responds to situations where face isinvolved. It is extremely jealous of its national dignity. Whilethis can produce a reaction of sullenness if the regime of the timesees the nation as slighted, diplomatic approaches to the Thaigovernment if handled correctly have seemed to work, especially, asdescribed in this analysis, regarding the treatment of refugees.When, for example, international organisations have approached theThai government discreetly it appears that the Thai government hasbeen persuaded by international pressure relative to the law ofinternational human rights.170Chapter FiveThailand. and the Law of the Sea I. INTRODUCTIONMillions of tourists visit Thailand every winter and duringtheir vacations along its coasts they inevitably see fishermenlining the decks of trawlers, waving to them, with big smiles ontheir faces as they head out in search of their next catch. But thetourists certainly do not realise how successful those men are intheir work or how important they are to the economic well-being ofThailand. Nor do they realise as they pick out their seabass forthe evening meal, what tensions are provoked every year by the Thaifishing fleet as it illegally probes the fishing zones ofThailand's neighbours.A quick glance at a map of the Southeast Asian region revealsThailand located as it is often characterized in tourist guides,like an elephant's head, the back of the head bordering Laos andCambodia, the forehead abutting Burma, and the trunk snaking downto dribble into Malaysia. It has a total land area of 513,115 sq.kms. 3152 This shape has arisen partially because of its seaboundaries, on the Gulf of Thailand to the South and East (1,735kms. in length) and off its southwestern coastline (908 kms.), the382 Fishery Resources, Thailand Natural Resources Profile,Thailand Development Research Institute, 1987,p.165.Burns/ 171Andaman Sea. In total length, almost 3,000 kilometers of coastlinewould appear to give Thailand ample access to the seas. 2But in 1982 after the UN Conference on the Law of the Sea, andthe resulting treaty, the Third United Nations Convention on theLaw of the Sea, (UNCLOS III), Thailand found itself in the unlikelycompany of nations such as Singapore and West Germany, the so-called "disadvantaged states". The delimitation on the area of itsown Exclusive Economic Zone, (EEZ) 3 and Continental Shelves andtherefore the jurisdiction over non-living resources in the Gulf ofThailand was not its only concern. There was the additional problemof fish and fisheries.At the time, in 1982, Thailand had the seventh largestdistant water fishing fleet in the world and the largest inSoutheast Asia. 4 Fish are an integral and traditional part of theThai diet. Fishing was central to the economies of hundreds ofcommunities along the Thai coasts and the distant water boats2United Nations Economic and Social Council for Asia and thePacific, Study on the Implications of the New Ocean Regime DerivedFrom the 1982 UNCLOS Volume 1: Thailand, 1990, p. 3.3Exclusive Economic Zones were established unilaterally bycountries until the UN Conferences on the Law of the Sea began todeal with them, eventually writing them into the Conventionspecifically in Articles 56 and 57 which defined them and the waycountries could draw the lines from their coastlines to set them inplace. The EEZs do not give states exclusive sovereignty withinthem but extend international recognition to a state's right toexclusive economic activity in the zone. Now, for example,scientists engaged in marine research in a state's EEZ must getthat state's permission before embarking on their expedition in theEEZ.4Phipat Tangsubkul, ASEAN and the Law of the Sea, Institute ofSoutheast Asian Studies, 1982. p. 61.Burns/ 172employed thousands of young men from the northeast of Thailand whowould have been unemployed otherwise. Finally, fish processing hadbecome a big industry in Thailand and by 1982, Thailand was a worldleader in the export of fresh, frozen and canned seafood.The treaty and its regime came into effect almost a decadeago. Yet Thailand has continued to fish and its fishing industryhas not only prospered but it continues to grow. The purpose ofthis chapter is to look at how Thailand, a "disadvantaged" state ascreated by UNCLOS, has adapted. In order to do that it is necessaryto review the cultural, historical and political facts which areconnected to this adaptation. Following that is a brief descriptionof Thailand's fishery resources, further documenting the importanceof its fishing industry to its welfare, recounting the pattern ofgrowth before and after UNCLOS. Conflicts and tensions arose in the1970's when Thai fishermen began trespassing on neighboring zones.What happened as a result of these disputes? 5 In reviewing theliterature, this chapter covers Thailand's involvement in thedevelopment of the Law of the Sea and the results of UNCLOS.Finally, it describes the problems Thailand has grappled with since1982 regarding the management of living resources in its own watersand the effort it has made to keep its fisheries viable. And inconclusion this chapter attempts to forecast how the United Nations5Chumphorn Pachusanond, "Thailand and the Settlement ofDispute in the 1982 Law of the Sea Convention,"  SEAPOL Studies 2(c)Institute of Asian Studies, Chulalongkorn University:Bangkok. 1984.p. 8.Burns/ 173Convention on the Law of the Sea will affect Thailand's fisheriesin the future.II. PRAGMATIC BY NATURE "Eclectic borrowing, temporization, adaptive skill, andpragmaticism [sic] are the very flavor of the Thai cultural geniusand lend it its continuity." said Dr. Niels Mulder in his analysisof Thai culture. 6Opportunism characterised Thailand's early foreign relationsin the last century as presented in Chapter Two, and thisopportunistic approach to foreign relations, international politicsand law has continued into the twentieth century when it became aone of the only independent Asian members of the League of Nations.The desire to impress outsiders and earn results to her ownbenefit also extended to the realm of law. In the last century Thailaw was relatively undeveloped but as the Europeans pushed onSiam's frontiers, and foreigners demanded trading rights, a moreclearly-defined legal system came to be a necessity at least forthe purposes of appearances to outsiders. Foreign powers demandedand received extraterritorial legal privileges. Laws were drafted,which were based on European models. Some were even drafted inEnglish to be translated later into Thai. 76Dr. Neils Mulder, Everyday Life  in Thailand: AnInterpretation, Editions Duang Kamol: Bangkok. 1985. p. 179.7Ted L. McDorman, "The Teaching of the Law of Thailand,Dalhousie Law Journal, 11 (Oct.1988): 917.Burns/ 174Yet even with the incorporation of European forms andinstitutions into its legal system, Thai traditional socialattitudes to the resolution of disputes relied more on negotiationand compromise than the use of law and courts. Avoidance was alwaysthe best tact. And today Thais still suffer from a culturally-defined shyness of using institutions like the courts to defendtheir interests. 8The earliest known laws or Royal decrees on the Law of the Seawere promulgated during the reign of Rama III (1824-51) controllingfishing in the rivers and the sea. His successor, King Mongkut(Rama IV) began taxing marine fishermen under a tax act enacted in1852. In 1899, King Chulalongkorn sent a delegation to the FirstHague Conference on the codification of International Law and in1938, the Thai Vessels Act put into effect the first directreference to Thailand's sovereignty over its seas. Although Thailaw never formally defined the limits to its territorial sea until1966, the British concept of three nautical miles had been enforcedthrough practice since the beginning of Rama VI's reign in 1910. 9Beyond these early beginnings, Thailand was a pioneer in thedevelopment of the International Law of the Sea, attending the 1930Conference for the first attempt at codification." At the FirstUnited Nations Conference on the Law of the Sea at Geneva in 1958,Thailand's delegation leader was elected to the Conference's8Id. p. 922.9Id., Tangsubkul, p. 17."Id. ESCAP Study, p. 3.Burns/ 175Presidency and is credited with first introducing to a UN forum theidea that the resources of the sea were the common heritage ofmankind." Malaysia and Thailand were the only developing countriesfrom Asia to sign and ratify the UN Convention on the Law of theSea in 1958. 12 That same year Thailand enacted the Historic Bayof Bangkok Law drawing base lines across the Chao Phya Riverestuary leading to its heartland and capital, Bangkok. In 1966 itextended its territorial sea out to 12 nautical miles, prompted bythe exploration it was sponsoring of oil and gas resources in theGulf of Thailand and in 1970 it proclaimed three more areas asinternal waters using the straight baselines principle along deeplyindented coastlines with fringes of islands.When the Third UN Conference on the Law of the Sea was held,in which it actively participated, Thailand found itself unlike theother developing Asian countries, viewing some of the conceptsbeing mooted with definite alarm. In addition to the threat ofbeing hemmed in by the Exclusive Economic Zones (EEZs) surroundingits own, Thailand found that it would be further disadvantaged asa major fishing nation by the drawing of boundary lines around thearchipelagos of Indonesia and the Philippines. This would meanthat, as the owner of a large distant water fishing fleet itsfishermen would have to pass through the EEZs of its neighbours toreach the high seas. Not to speak of losing access to traditionalfishing grounds with the stroke of a pen."Ibid.12Ibid.Burns/ 176The Law of the Sea, like any area of International Law, hasevolved into its current form because of the needs of the variousnation-states involved in its development as discussed in ChapterOne. Their distinct needs as nations, their national interests asthey relate to the sea, even their cultural and traditionalattitudes to the seas, have determined what position they havetaken in the continuing debate over the legal regime governing theoceans." And the resultant law has been a compromise, reconcilingoften divergent interests for the common design.This means that everything that has determined the characterof a nation such as Thailand, determines the position it takes inany International Conference especially one as far reaching asUNCLOS. In 1982, Thailand became a beneficiary and a victim at thesame time. It endorsed the solidification of the law on theContinental Shelf and the resultant access to the non-renewableresources of the seabed. This ensured that the gas fields it wasrapidly developing in the Gulf of Thailand, were in the majoritygoing to be secure under International Law. 14 But its fishingindustry was another matter. Suddenly, the thousands employed inthat growing sector of its economy were finding their jobs andfutures in jeopardy. And all because of a law which few of themeven knew about, much less understood."Richard Paisley, "Pacific Fisheries and the EmergingInternational Law of the Sea," UBC Law Review (Winter 1990): 106.14Id. ESCAP Study. p.3.Burns/ 177In that sense then, Thailand's fisheries and access to theoceans beyond its traditional fishing grounds were jeopardised bythe forest of EEZ's which suddenly hemmed it in in 1982. It meantthat its fishermen who had formerly enjoyed unimpeded access oninternational waters to the high seas found themselves potentiallysubject to the regulation of fishing in the EEZ's of Malaysia,Indonesia, Cambodia, Vietnam and Burma.III. FISH IN THE WATERS, RICE IN THE FIELDSBut Thailand needs fish. Its very culture can in a sense besaid to depend on fish, or at least a very important component ofthat culture, its cuisine. The staple most often equated with"food" to the Thais in their concept of sustenance is rice. Riceunites the people of Thailand but fish have long provided to themajority of Thais who cannot afford meat, a relatively cheap sourceof protein to supplement their rice diet. " Keyes wrote:"...the main food Ito be eaten with rice' is fish (pla)in some form. Many communities along the coast of theGulf of Thailand specialize in fishing. Although some ofthe catch is eaten fresh -- more today than in the pastbecause of improved means of transportation andrefrigeration --- much of it is dried and salted." 16Marketplaces all over Thailand, even in its most remotevillages in the north display stacks of "pla thu", a popular formof salted mackerel. Other ingredients essential to Thai cuisine"Id. "Thailand Natural Resources Profile, p.172.16Charles F. Keyes, Thailand:Buddhist Kingdom as Modern Nation-State(Boulder: Westview Press, 1987), 11.Burns/ 178such as fish sauce and fermented shrimp paste come from the fishcaught by Thailand's fishermen.Even religion comes into this dietary choice. Thais in themajority are Buddhists, belonging to the tradition of thatreligion, "Theravada" meaning "the way of the elders". There is ofcourse, a Buddhist abhorrence of killing animals for meat. Hence itis rare to find Thais working as butchers. Fish are a preferredfood because rather than being killed, they are merely taken fromthe water and allowed to die. 17Over and above the dietary and religious considerations,fishing is important to the Thais as an economic activity whichemploys thousands either directly on the boats or indirectly in theprocessing plants. 18 In Thailand's northeast, drought and otherhindrances to development have contributed to the region's poverty.An exodus of young men and women have flooded into Bangkok and themore prosperous regions of the south. Many have gone to work abroadin Singapore or the Middle East. And, a large number work crewingThailand's fishing fleet. 19 The Thai Department of Fisheriesestimates that the fishing industry in 1982 contributed 1.16% tothe GDP which is a decline from the 3% the Asian Development Bankestimated in 1985. This reflects the growth of Thailand'sindustrial sector rather than a decline in the actual role of"Ibid., 1318Id. Resources Profile, p.172.191987 Economic Review, Bangkok Post,.Burns/ 179fisheries as a source of employment. 20 ESCAP estimated in 1990 that57,591 households are involved with marine fishing as theirbusiness and another 29,904 families are employed on fishing boats.With an additional 26,000 households working in the post-harvestactivities this comes to over 100,000 households directly dependenton fishing. 21The Thai fishing industry experienced significant growth inthe Seventies, and this is what made Thailand's trawler fleet oneof the largest in the world. Thailand's fishermen had formerly beentraditional fishermen restricting their catch to what they couldharvest from the Gulf of Thailand and the coastal waters along theAndaman Coast. But foreign assistance and loans from institutionslike the Asian Development Bank gave the industry the capital toinvest in larger boats and better technology. This in turn gavethem distant water capabilities and they found themselves goingfurther and further afield, entering the waters of the Indian Oceanand the South Pacific. Within a decade, the fleet had become one ofthe world's major distant water fishing fleets. 22This growth in the trawler fleet resulted in risingcatches throughout the 1960's and '70's. Where formerly the coastaland traditional fishing industry had only to catch enough fish tofeed the Thai population , the new larger fleet was able to do this20Id. ESCAP p. 10.22Phiphat Tangsubkul, ASEAN and the Law of the Sea, Instituteof Southeast Asian Studies: Singapore. 1982. p.60.Burns/ 180and still have a surplus left over for export. The surplus gaverise to the development of processing industries mainly alongThailand's Gulf Coast. Fishmeal plants processed the scrapfishhauled in by the trawlers. Canning plants sprouted up to deal withthe surplus in tuna, shrimp and other species sought by growingmarkets for Thai processed seafood around the world, the US,Canada, Japan, and the countries of the EEC. 23At the end of 1989, Thailand's position as a leading member ofthe global fisheries business placed it among the top ten. Itscatch reached an estimated 2.8 million tons, making it the topperformer in SE Asia. Thai authorities have registrations for17,000 fishing vessels and the number of unregistered vessels istwice that figure. From an average export value of $300 million(US) in 1977-82, seafood exports tripled in value during 1984-87 toclose to $1 billion (US). In 1988, exports reached 43,000 millionbaht (US$ 1.5 billion), placing it among the top seven exporters offish products worldwide. 24An estimated 20% of the present catch landed in Thailand comesfrom the Bay of Bengal and the remainder is caught in the Gulf ofThailand, allegedly in Thai waters. 25 The Gulf of Thailand is arelatively shallow inland sea which is remarkably productiveconsidering that even as far back as 1985, the Asian Development23Ibid., 6124Year-End Economic Review 1989, Bangkok Post, p. 81.25Id. ESCAP Study, p. 10.Burns/ 181Bank declared it overfished. 26 The fishing taking place in the Gulfis often illegal. Fishermen use dynamite or fish out of season.Both activities result in a large percentage of juvenile fish beingtaken. Nevertheless the stocks are extremely resilient and thesurvival rate is high for all the many species in the Gulf becauseof the optimum conditions. 27But with the pace of growth in the Thai trawler fleet, therise in capacity of Thailand's seafood processing industry and theincreased demand for exports, Thailand's fishing fleet has had toeither sink, or swim into troubled waters, in other words trespasson the zones of other states if it was to increase its catch. 28IV. A TROUBLED SUCCESS STORY The 1980's saw Thailand pushing its economy into high throttlein its zeal for growth, foreign investment and its much ballyhooednewly industrialised country, (NIC) status. This stretched everyaspect of its infrastructure to the limit and put a tremendousstrain on its environment. Its fisheries were caught up in thenational push and the resources the fishermen sought in theirtraditional fishing grounds were quickly becoming exhausted. At the26"Thailand Fisheries Sector Study," Asian Development Bank1985. p. 79.271bid.2814agnus Torell, "Thai Fisheries and Fishing Industry: ItsDevelopment and Prospects with regards to the 1982 Law of the SeaConvention," SEAPOL Studies No.2(b): Institute of Asian Studies,Chulalongkorn University, Bangkok 1984. p 39.Burns/ 182same time, in 1982, UNCLOS allowed neighbouring states to erecttheir sea walls around internationally sanctioned EEZ's.The introduction of the 200 mile nautical mile limit to EEZ'sby Thailand's neighbours locked out Thailand's fishermen from anestimated 300,000 square miles of fishing grounds that had formerlybeen regarded as theirs traditionally. " It was only a matter oftime before Thai fishermen broke the barriers that were vaguelydrawn anyway, especially when they had broken them with impunity aslong as they could remember without ever considering they weredoing anything wrong.Throughout the 1980's headlines began appearing withincreasing frequency in Bangkok newspapers citing yet another Thaitrawler arrested in a neighbouring state's EEZ. 30 The littoralstates around the Gulf of Thailand began arresting trawlers,impounding the vessels and imprisoning their crews. This producedrising tensions in the Gulf and Thailand saw its reputation declineas these incidents escalated throughout the decade. 3129Ted McDorman, "International Fishery Relations in the Gulfof Thailand," Contemporary Southeast Asia, 12:1(June 1990): 40.30The author was resident in Thailand from 1985 - 1990 andworked for the Bangkok Post during those years, writing aboutfisheries and other resource based industries for the BusinessPost.m Id. McDorman, p.41Burns/ 183V. THAILAND AND UNCLOS : THE 1980'SOne by one, the states controlling the Gulf, the South ChinaSea and the Indian Ocean erected their 200 mile sea boundaries.Vietnam started the ball rolling in 1977. Cambodia was close on itsheels in 1978. Malaysia followed in 1980. Seeing the emergingregime as a permanent feature of international law, Thailand withreluctance, drew its own 200 nautical mile limit in 1981. 32Prior to this, the Thai delegate, Mr. Arun Panupong, said tothe Second Session of UN Conference on the Law of the Sea in 1974:"With regard to the Economic Zone which proposes inessence that within the limit of 200 nautical milenational jurisdiction, the coastal state would have theexclusive authority to establish whatever rules andregulations concerning disposition of resources under itsjurisdiction, my Delegation is very sympathetic to thebroad national jurisdiction, this, of course withoutunreasonable interference with other uses of the sea ornon-resource aspects. But serious consideration should betaken from two distinct points. The first point...in thecase of 200 mile criteria being finally accepted by themajority it is my Delegation's position that a formula ofinternational standard should be devised so as to ensurecompensatory rights or benefits for the countries whichdo not have potential to extend their jurisdictional seaareas to that limit." 33He went on to state in his second point, that the EEZ shouldnot allow a blanket jurisdiction over both living and non-livingresources because they are fundamentally different .3432Ibid.33Quoted in Pipat Tangsubkul, p. 77.Burns/ 184The Thais continued to advocate a purely economic jurisdictionfor the EEZ concept, a position they shared with Singapore. Butthey did state their hesitation about the EEZ's carving up theworld's oceans in such a way that one third of the world's nationsreaped a mother lode, 29 landlocked states got nothing, and some 80states of which Thailand was one, got the crumbs. 35They also stated their objections to the archipelagic conceptwhen its two fellow ASEAN members, Indonesia and the Philippinesdrew lines around their archipelagos and declared the seas insidethose boundaries their EEZ's. 36When the dust settled and the nations around it fell into stepwith the UNCLOS line, drawing boundaries all over the maritime map,Thailand had joined a handful of Asian nations, like Singapore,Cambodia and Brunei, which were definitely disadvantaged. It waszone-locked because its vessels had to pass through neighbouringzones to get to the high seas. It was shelf-locked because at nopoint could it fully extend its 200 nautical mile limit withoutencroaching on the EEZ's of its neighbours. By way of comparisonits actual coastline of 2600 kms is similar to Myanmar's (3,000)yet its EEZ is only 94,700 sq. kms. compared to Myanmar's 148,600sq.kms. As a result of this anomaly, Thailand applied to beconsidered as a geographically-disadvantaged state under theConvention but was refused on the grounds that its problems were no35Ibid. p.80.MId. ESCAP report, p.11.Burns/ 185different than the sixty to seventy other nations which had lostout in the feeding frenzy resulting from the UNCLOS. 37In spite of its hesitant opposition to an international lawwhich was definitely going to work to its disadvantage, Thailandsigned UNCLOS in 1982. Prior to this when it appeared certain thatthe nations surrounding it were already treating the accord ascustomary international law and setting up their maritimeboundaries to reflect it, Thailand began negotiating with itsneighbours to arrive at agreements over shared interests. 38The maritime boundary delimitation process in the Gulf ofThailand was more problematic than the process off its Andamanseacoast. For one thing, Thailand's relations with two of the Gulfstates, Vietnam and Cambodia, had been rocky for some time. Foranother, Cambodia has been in a constant state of internal turmoilfor almost two decades. Not to speak of the Thai refusal to signtreaties with a regime it has refused to officially recognise.Finally, Cambodia bases its adjacent boundary claim on the Franco-Siamese treaty of 1907 which Thailand regards as only applicable tothe drawing of land boundaries. 39As for Malaysia's claims in the Gulf, Thailand signed aMemorandum of Understanding with Malaysia regarding theirboundaries and continental shelves in 1979 and established a JointAuthority to administer an overlapping area . In this zone, both37tbid.38Ibid, p.13.39Ibid.Burns/ 186nations' fishermen were given equal access to the living resources.In 1987, the Malaysian navy arrested several Thai boats and sparkeda crisis which brought the issue to the attention of the highestlevels of both governments. 40That is not to say that Thai fishermen were not givingheadaches to the policy-makers in Bangkok as well. It must beunderstood that what the various players in the Thai fisheriesequation want also often diverges. The Thai fishing industry itselfis not uniform, combining different kinds of vessels and crews,many of which are unregistered. The Department of Fisheries has adifferent agenda from the Foreign Ministry as wel1. 41 While theForeign Office in Bangkok might genuinely seek better relationswith its neighbours and hope for a more peaceful solution to thedisputes that arise because of incursions by Thai fishermen, theyhave little control over these men. Thai fishermen have long had aless than lustrous reputation as swashbucklers in the seas ofSoutheast Asia. Frequent incidents of piracy involving brutalattacks on Vietnamese refugee boats in the Gulf of Thailand in theearly 1980's did not diminish this notoriety. This was especiallytrue when international organizations invariably blamed Thaifishermen for the attacks. 42"Ibid.°Ted McDorman, Interview at the University of Victoria,Faculty of Law, Victoria, B.C. April 12, 1991.42Samuel P. Menefee, "Scourges of the Sea: Piracy and ViolentMaritime Crime," Marine Policy Reports 1(1989): 20.Burns/ 187But the Thai approach to preventing potential conflicts withindividual nations has been piecemeal to say the least. Rather thanattempting to take on the issue in a regional way, the Thais in the1980's seemed to favour the signing of a series of bilateralagreements with individual neighbours, thus setting up a patchworkof relationships which presented an appearance of cooperation. Butbecause Thailand has signed but failed to ratify the UNCLOS, nolegislation has been passed which directly reflects its signatureto the Convention. It seems that the Thai hesitancy to ratify theConvention is based on its reluctance to incorporate into Thai law,segments of a Convention which compromise its security merely forthe purpose of accepting into its law the rest of the Conventionwhich does conform to its national interests. This, incidentally isprobably the reason the majority of nations would give for theirreluctance to ratify the Convention. 43What laws have been enacted to deal with fisheries inThailand? The Fisheries Act of 1947 is the main piece oflegislation with its accompanying implementation regulations. TheThai Vessels Act, 1938, specifies registration procedures forvessels. Finally there is the Navigation in Thai Waters Act (1913).The Fisheries Act and regulations prohibit activities such asillegal forms of fishing (use of dynamite, illegal forms of netsetc.) or the capture of endangered species such as certain marineturtles or dugong. 4443 Id. Torrell, p.47."Id. Thailand Natural Resources Profile, p. 186.Burns/ 188Consistent with Thai cultural attitudes to foreign relationsand confrontation, the Government throughout the negotiationsleading to UNCLOS in 1982, used quiet diplomacy to set up theneeded agreements to deal with the new regime, while turning aseemingly blind eye to its fishermen going in the back door of itsneighbours and doing what the diplomats in Bangkok said they werenot doing. This resulted in hundreds of Thai vessels beingimpounded and the government required to pay out millions incompensation to neighbouring governments. It increased tensions inthe region and gave the Thais a reputation completely opposite theone their Foreign Office wanted them to have. 45In its Fifth Five Year Plan which came into effect in 1982(1982-86) the Thai Government placed high priority on continuedgrowth in the fishing industry but seemed to see that it could nolonger depend on its fishermen keeping the harvest rising in volumewithout breaching the zones of Thailand's neighbours. And the costshad become too prohibitive. So the Plan stated as its two mainthemes relative to fishing, the promotion of the development ofhigh seas capabilities in the fleet and more substantial jointventures with neighbouring states."It took time to be able to say this new approach was havingits effect. But in 1983, Thailand's fisheries production reached alevel close to what it had been in 1977 because as Torrell claimed°Ibid."IbidBurns/ 189there had been several successful joint ventures concluded whichreaped rapid results. There was heavier exploitation of localresources and a greater productivity from the Gulf fleet as it grewmore sophisticated in locating local resources. Formerlyunexploited stocks like squid and tuna were fished, eventuallybecoming important as exports. But the problem of Thai fishermentrespassing into the zones of neighbouring states continued. 47By 1985, an estimated 467 Thai fishing vesselshad been reported seized and over 1000 Thai fishermen were in jailin neighbouring countries." Of that number, 198 boats were seizedby Vietnam and 107 by Burma. The remainder were arrested byMalaysia, Cambodia, India, Indonesia and Bangladesh."'It was not until the period after 1985, that the publiclyexpressed attitude toward greater cooperation with neighbouringstates seemed to be bearing fruit. Some of these agreements, likethe early efforts at joint ventures with Bangladesh and Myanmarfoundered with recriminations on both sides and accusations thatthe Thais had breached their promises and overfished contrary tothe agreements." But in Myanmar's case, political expediency cameto Thailand's assistance. The new military government's efforts to47Id. Mark Torrell, p. 31."It is estimated that even with releases of fishermen fromjails in Vietnam and Burma, their numbers have been replaced andthere are still well over 1000 Thai fishermen in prison throughoutSoutheast Asia.49Jaiyen P.K. Suraswadi and P. Laopatchan, "Utilization ofLiving Resources," Thai Fisheries Gazette, 1985.uthailand Resource Profile, p. 186.Burns/ 190cosy up to the Thais produced a new arrangement in 1990, which waslavishly reported in Bangkok newspapers."Successful venture agreements were concluded with Australia in1984 and India in 1985 which would appear to be still in effect. 52With the change in Thailand's government in 1988, a new policywas announced by Prime Minister Chatichai Choonhavan, to makeIndochina a marketplace rather than a theatre of war. Overturesdesigned to stimulate trade and investment were made to bothCambodia and Vietnam. Such a change in direction would have beenunthinkable a few years before. In relation to fishing theseefforts began to reap results in 1990. In January of that year, aThai fishing company announced the signing of an agreement withCambodia's Meng Samrin Government which, for a relatively modestfee, enabled it to fish in Cambodian waters using a 60 ton trawler.Soon after this announcement, 40 other fisheries companiesannounced their interest in concluding similar agreements with theCambodian authorities. 53Vietnam had also expressed interest in being more flexiblewith the Thais regarding its maritime jurisdiction. While doingvery well by UNCLOS in terms of its EEZ, Vietnam had lost most ofits fishing fleet with the exodus of refugee boats to other""Broking house set up to deal with Burma fishing," BangkokPost, 19 Jan. 1990: 16.52ESCAP report, p. 15.""Cambodia Fishing," Bangkok Post, 26 Jan. 1990: 17.Burns/ 191waters. 54 Its relations with Thailand had been extremely coolthroughout the 1980's but Vietnam did much to reconcile theirdifferences by releasing several Thai fishermen and allowing themto fly home. In November 1990, a high level Thai delegation went toVietnam and signed a Memorandum of Understanding.In December, 1990,the terms of the MOU were formalised and included a comprehensiveagreement to cooperate in fisheries development. They agreed to setup a joint fishing fleet and cooperate in upgrading Vietnam'scanning industry. There was also provision for the building of ashipyard in Ho Chi Minh City with repair facilities for ThaivesselsMalaysia as Thailand's closest neighbour has been the mostrecalcitrant in relation to fishing disputes. In 1987 theyestablished a Joint Commission for Bilateral Cooperation which hada subcommittee to work out fisheries disputes. That same year therewas a private sector joint venture for Thai and Malaysian companiesto fish in Malaysian waters using Thai boats. But in spite of theseagreements, Malaysian suspicions continued.Looking back over the record of the Thai fishing fleet'sintrusions into its neighbours' EEZs, Professor McDorman admits inhis paper on fishing disputes in the Gulf, that there has been areduction in tensions but states:54"Small Fleet Holds Back Vietnam's Recovery," Fishery News International, July, 1990.55"Vietnam and Thailand sign fisheries pact," Far EasternEconomic Review, 2 Dec. 1990:64.Burns/ 192"...none of the sources of the conflicts have beenremoved. " 56He therefore concludes that it will be only a matter of timebefore the Thai fleet again runs into trouble in neighbouring EEZ'sand this will again characterise the 1990's. That forecast seems,to this author unduly pessimistic. The sources of the conflictshave slowly been changing. First of all the politics in the Gulfare in definite transition and Vietnam is desperate for assistanceto get its fisheries back on track. Second, Thailand is doingsomething to make its fishing industry aware and accepting of theUNCLOS regime and attempting to lessen the industry's dependence onthe catch from the Gulf by increasing production from aquacultureand expanding its high seas fishing capabilities.In regard to the last point, Thailand seems poised accordingto a number of sources to make a stab at increasing its distantwater fishing capacities and enter the ranks of South Korea andTaiwan, if not Japan and the United States in setting up a fleetcapable of going after the lucrative tropical tuna stocks in theSouth Pacific.At the dawn of UNCLOS, the ASEAN countries were minor playersin the world harvest of tropical tuna. But by the mid-1980's thePhilippines had begun to record sizeable tuna harvests, (200,000tonnes per year) while ASEAN overall was bringing in 650,000tonnes. Both Indonesia and the Philippines benefited from UNCLOSrecognition of their status as archipelagic states. Under UNCLOSNcDorman supra. "Conflicts in the Gulf," p. 52.Burns/ 193Article 56 they also have sovereign rights over the tuna stockswhich originate in their waters. 57In addition to the growth in tuna harvests of the ASEANstates, there was a shift of the processing industry away fromcountries like the U.S. to less developed countries. First thePhilippines benefited from this trend and then Thailand. Thailand'stuna processing capacity has grown in spite of a dirth of tuna inits own waters. This has meant that by the end of the 1980's it hadbecome the world's leading exporter of canned tuna. 58Another development that augers well for Thailand's fishingindustry and its reliance on the conflict-ridden waters at home, isthe growing cooperation between the island states of the SouthPacific and ASEAN. In the mid-1980's the South Pacific islandsthrough their fisheries organization, the Forum Fisheries Agency,(FFA) approached ASEAN with an eye to effecting some form ofcooperation between the two organizations. Although nothingconcrete resulted, the FFA did broach the possibility of a jointproject to monitor and manage tuna fisheries since the FFA statesshare straddling stocks of tuna with Indonesia and the Philippines.Thailand fits in this scenario as follows: the FFA states' haveexpressed interest in obtaining assistance in developing their owntuna processing capacity. Thailand's position as a world leader is57United Nations, 1982. UN Convention on the Law of the Sea,December 10, 1982, UN Doc. A/Conf. 62/122(1982).58Gordon Munroe,"Extended Jurisdiction and the Management ofPacific Highly Migratory Species," Ocean Development andInternational Law, 21 (1990): 302.Burns/ 194of interest to them and Thailand may be able to work its way intothe vacuum in the South Pacific tuna fisheries created by the exitof the US and Japanese tuna fleets. Some authorities are suggestingthat Japan and the US have lost their comparative advantage asharvesters and will soon be replaced. 59Thailand is in the process of building a state-of-the-artpurse seiner with licensed technology from abroad. It is the statedgoal of the Government to use the new boat as a model for its ownshipyards to begin building up its fleet of such boats."There is the additional possibility ASEAN will begincooperating with the FFA in the establishment of a joint RegionalRegister of Foreign Fishing Vessels. This would make sure anyvessels found in violation of the various organizations'regulations or quotas would be barred from the region. This couldbe a double-edged sword for the Thais. If they can respect therequirements, they could have access to a vast swath of ocean andlessen their dependence on fishing resources closer to home. But ifThai fishermen are caught repeating the sorry record they havecreated with Thailand's neighbours, they could find their vesselspermanently locked out of the richest tuna fishery in the world. 61"Ibid. p.304.601989 Year-End Economic Review, Bangkok Post.mid. Munroe, p. 304.Burns/ 195SUMMARYAs has been stated throughout, Thais have traditionally foundtheir way around problems by hook or by crook. Some observers ofthe Thai fishing scenario, McDorman for one, seem to view thisdecade ahead with pessimism, believing that it is only a matter oftime before the conflicts characterising Thailand's relations withits Gulf neighbours again heat up and recriminations are flyingover the waters once more.But the inherent pragmatism of the Thais will hopefullyprevail. After all, the problems confronting the Thai fishingindustry are not insurmountable. As has been demonstrated, UNCLOSdid formalise the hemming in of its EEZ by the zones of itsneighbours and thereby deny the Thai fleet free access to the highseas. And it must be agreed, the Thai fleet is too large for theresources in its own EEZ. But even this last problem is solvableif the other major problem, the continuous conflicts with itsneighbours, is adroitly handled. Thailand has obviously not putenough emphasis in the past, on forming joint ventures with itsneighbours and then impressing its fishermen with their terms.McDorman's view that, "The Government of Thailand's inability tocontrol its fishermen makes it inevitable that Thai fishermen willbe arrested in non-Thai waters..." carries the conclusion one stepfurther into the touchy business of forecasting future conflicts.Instead it seems necessary to highlight how the Thai Government hasbeen conducting seminars for its fishermen to try and halt pirateBurns/ 196attacks on refugee boats in the Gulf . This approach coupled withincreased international cooperation and better patrols of the mainroutes for refugees in the Gulf, seems to have brought about arapid decline in pirate attacks. Cannot a similar approach work todeter Thai fishermen from straying into the EEZ's of otherstates?62In addition to educating its fishermen about UNCLOS andThailand's need to cooperate, the Thai Government needs to spendmore on equipment to patrol the outer limits of its own EEZ. It hasalready embarked on the expansion of its navy with frigatespurchased from China. ° Perhaps it could put the money to betteruse building smaller patrol craft for its coast guard andpurchasing patrol helicopters.ASEAN's discussions with the FFA nations also raise thepossibility that Thailand will enter the ranks of countries doingtheir own form of technology transfer. Already Thai experts infields such as family planning have been sponsored by UNorganizations to teach other developing countries how to set upsimilar programs. The experience the Thais have in establishing aworld class seafood processing industry could have definitepractical value for the underdeveloped island nations of the SouthPacific and such exchanges might open up further opportunities forThailand's fishing fleet.62Id. Menefee, p.20.°Wan Buranasutra, "Building up the Fleet" Bangkok Post, 1987.Burns/ 197During a conference on extended maritime jurisdiction in thePacific in 1987, Dr. Phipat Tangskubkul of Chulalongkorn Universityacknowledged that Thailand had accepted the inevitable and hadbegun phasing out fishing in the EEZs of neighbouring countries. Inresponse to the statement that Thailand has had to expand itshorizons, he said, "...you know that Thai fishermen are experiencedmostly in trawling in shallow waters. We don't have any experiencewith tuna fishing in deep sea areas such as the South Pacific. Butwe are now obliged to start to learn how to fish for tuna, andmaybe in ten years Thailand will be another tuna fishing country.And then our problem will not be with our neighbouring countries,Malaysia, Burma, or Vietnam, but with the US and the USSR."""Phipat Tangskubkul, "The International Implications ofExtended Maritime Jurisdiction in the Pacific," Proceedings of the21st Annual Conference of Law of the Sea Institute, Aug. 3-6 1987,Law of the Sea Institute, Univ. of Hawaii: Honolulu:74.Burns/ 198CONCLUSIONThis paper has proceeded from a general thesis based onthe idea that States are influenced by international law and theirbehaviour in relation to it, although closely linked to all thatgoes into their foreign policy-making. In analyzing how and why anation behaves as it does in relation to international law, it wasstated, both internal and external determinants for its behaviourshould be reviewed. Texts on Canada for example, that discussCanadian attitudes to international legal issues, discuss theinternal factors such as its history as a French then Britishcolony, federalism, English-French relations, its geography andvast northern areas, its underpopulation and widely spread outpopulation centers, its resources and its coastlines, its ethnicmix and its indigenous peoples. Externally, its relations with theUnited States, its relations with Europe and specifically Britainand its newly emerging consciousness as a nation on the rim of thePacific Basin are considered.While this paper is by no means an exhaustive analysis of allaspects of Thailand's character vis-a-vis international law,leaving out the rapidly developing involvement with privateBurns/ 199international law and international commercial law, it hasattempted to put together a narrative of Thailand's development asa nation-state which because of its long history of independence isunique among developing states.Out of this analysis a number of characteristic Thai responsesto international law and politics have, it is hoped, beenclarified. Historically, Thailand learned as the ancient Kingdomof Siam that it had to bend with the powers that were ascendant atthat moment in its history. It accepted the imposition ofextraterritoriality laws and signed treaties with all the majorpowers throughout the nineteenth century, using what internationallaw existed through these agreements to safeguard its sovereignty.Early on it sought to establish its national legitimacy in the eyesof European powers, especially Britain and France. And it playedthem off one against the other to stay free from the control ofeither. Its kings learned quickly that they had to bend at least inappearance to these powers while perhaps doing as they wished allalong. They brought in European advisors to reform their laws togive them the appearance of European codes, but in many waysretained important vestiges from the traditional law of Siam.While Thailand has had to adjust to the external factors suchas the powers that are most in control in Southeast Asia, it hasalso been influenced in its foreign policies and reactions tointernational law, by several internal factors as well. Internally,perhaps the greatest influence on its behaviour internationally andstances like strong anti-communism, has been the dominance of theBurns/ 200military in its political system, especially since the coup of1932. Several institutions have supported the continuation of themilitary's power, not least of which is the monarchy. And thenature of the Thai people themselves to leave the business ofgovernment to their leaders, and give respect to the leader, hasassisted the military to retain control, even to this day.The military elite have influenced Thailand's behaviourrelative to international law and organisations in a number ofways. First, Thailand has been an enthusiastic participant in theUnited Nations since it joined in 1946. It has benefited from thisappearance of participation, but in many instances has notincorporated the spirit of the United Nations covenants especiallyin human rights, into its own legal system.Second, when Thailand has been brought before an internationaltribunal as it was in the Temple of Preah Vihear case, and thedecision went against it, the government's reaction demonstratedthe petulance of the leader in power at the time, and his need forusing the decision as a scapegoat to further his political needs.Only when American sources recommended a calmer approach to thedecision, did the government soften its stance and allow the matterto be de-fused.Third, in relation to human rights, the military has neverallowed its priorities and concern for national security to becompromised by international criticism over its human rightsrecord. Regarding the hill tribes and relations along the borderswith neighbouring states, the military has long had an involvementBurns/ 201in a complicated network of cross-border deals and tradingrelationships. Where international organisations have run afoul ofthese, they have had little success. But where international lawand the organisations that operate under it, in relation to thehill tribes, the ethnic disturbances along the Burmese frontier, orthe refugee situation on the borders with Laos and Cambodia, haveworked with the military and tried to merge their agendas, therehas been success and Thailand has appeared to behave consistentwith international law.That has generally been the lesson that has come from thisanalysis. Thailand will, like any nation perhaps, ignoreinternational law if it is perceived as compromising itsfundamental values as a sovereign state. While it has incorporatedthe Universal Declaration of Human Rights into its 1978Constitution, it still maintains a very tenuous protection of basiccivil liberties and in times of martial law, has no compunctionwith abrogating them completely. When it was first faced with amassive influx of refugees coming from Cambodia it panicked andforced many of them back over the border. But with internationalsupport, the Thai government eventually cooperated in allowing avast number of refugees to be accommodated on its soil, over amillion by 1990. And it might be asked how other nations wouldreact given the circumstances Thailand faced in 1979.As for the Law of the Sea, Thailand has seen itself deprivedof access to the high seas by a law which has been supported by itscounterparts in ASEAN. While it has had definite regrets, it hasBurns/ 202accepted this monumental regime that has re-ordered the control ofthe seas, because it has no other choice. But characteristically,it has adapted. Even though the Law of the Sea could have severelyhampered its fishing industry's growth potential, it has throughgovernment policy directed the industry to grow in areas that arepossible under new international law. And it has negotiatedbilaterally with its neighbours to set up joint ventures. In otherwords, in relation to international law, Thailand has bent like thebamboo in the wind, when it has seen the winds of change impossibleto deal with in any other way.Last but not least, Thailand would seem to have become moresophisticated in dealing with international law and institutionssince its confrontational approach to the decision against it ofthe International Court of Justice. Thirty years have passed sincethat decision. During that time, Thailand has used the UnitedNations to bring world opinion down against the Vietnamese, andkeep the CGDK as the recognized faction in the world community.While other factors certainly were involved in the resolution ofthe war in Cambodia and Vietnam's withdrawal, Thailand's consistentuse of the United Nations and conformity with international lawwhen its security was being threatened, have undoubtedly made itmore favorable toward bringing its foreign policy priorities intoline with international law.Burns/ 203BibliographyAlagappa, M. "The Dynamics of International Security on SoutheastAsia; Change and Continuity," Australian Journal ofInternational Affairs, 45:1 (May, 1991) 1-33.Asian Development Bank, Thailand Fisheries Sector Study, 1985.Bangkok Post, Jan.- Dec. 1990.Brailey, Nigel J., Thailand and the Fall of Singapore, Boulder andLondon: Westview Press. 1986.Burns, W., Bangkok Post, various articles written between 1985-91in the author's files.Chantavich, Supang and E. Bruce Reynolds (eds.),Indochinese Refugees: Asylum and Resettlement, Institute ofAsian Studies, Chulalongkorn University: Bangkok. 1988.Chulbakesa, C., "The Sakais: the Problem of Their Settlement,"Proceedings of the International Conference on Thai Studies,Australian National University: n.p., Vol.3, 1987. 225-27.Churchill, R.R., "The Fisheries Jurisdiction Cases: TheContribution of the International Court of Justice to theDebate on Coastal States' Fisheries Rights." 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