Layered localization of international human rights law: Signaling and contestation in the context of Thailand

Abstract

To make international human rights enforceable on the ground, they must be localized. In the process, domestic stakeholders may attempt to contest or reshape the rights. Although norm localization has received much scholarly attention, prior publications have failed to explain which elements of a human rights treaty might be contested and why. Based on signaling theory, this article starts from the assumption that governments’ commitments to human rights treaties raise corresponding expectations on the part of other states. Consequently, contestation is relatively more likely when a government considers the audience costs for backtracking on its commitments to be lower. The article goes on to suggest that expected audience costs vary for different treaty elements—primary, secondary, and tertiary—which in turn affects the relative likelihood of contestation. The article develops a novel approach to norm localization and applies it to the making of a treaty-transposing law against torture and enforced disappearance in Thailand. The case study largely confirms the model but also demonstrates the significance of local specifics, such as a history of impunity. The findings allow theoretical and practical conclusions for the legislative localization of international human rights law.

Acknowledgments

I would like to thank two anonymous reviewers for their constructive comments. They contributed to substantial improvements of the article. Many thanks also to Kevin Downey for valuable feedback on a prior draft.

Notes

1 English translation of the Act via the Ministry of Justice, Press Release No. 433/2566 <https://www.moj.go.th/view/81367>.

2 In any event, by signing an international treaty, “a state is obliged to refrain from acts which would defeat the object and purpose” of the treaty according to Article 18 of the Vienna Convention on the Law of Treaties 1969.

3 Among them are the Thang Daeng (red drum) incident of 1972, the Ban Na Sai village burning of 1974, the Thammasat University massacre of 1976, the “Black May” killings in 1992, the “war on drugs” in 2002, the Krue Se and Tak Bai incidents of 2004, and the killing of Red Shirt protesters in 2010.

4 Such as the cases of Thanong Pho-an in 1991, Somchai Neelapaijit in 2004, Porlachee “Billy” Rakchongcharoen in 2014, Den Khamlae in 2016, Wutiphong Kochathammakhun in 2017, Surachai Danwattananusorn in 2018, Sayam Thirawut in 2019, and Wanchalearm Satsaksit in 2020 (in Cambodia).

5 Thailand has neither signed nor ratified the 1990 Convention on the Protection of the Rights of All Migrant Workers and of their Families.

6 In 2009, the Thai government commissioned a research report on Thailand’s readiness to ratify the CED (Satayanurug, 2022).

7 Secretariat of the House of Representatives, Report on the Act’s Possible Impact (Impact Report, IR) and Summary Report of Hearings on the Draft Act for the Prevention and Suppression of Torture and Enforced Disappearance (Summary Report, SR), as attached to the draft Act submitted to the House of Representatives by the Prime Minister with letter of 17 August 2021 (in Thai) <http://edoc.parliament.go.th/getfile.aspx?id=741912&file=Y12282+ปราบปรามการทรมานบุคคลสญหาย+(ครม).pdf&download=1]>.

8 Roughly three months after the 2014 coup, the Justice Ministry’s Rights and Liberties Protection Department (RLPD) and the Faculty of Law of Thammasat University held a public seminar for feedback on an initial draft Act. After a public hearing in early 2015, the draft moved slowly between the Cabinet, the Ministry of Justice, the Council of State, and the unelected National Legislative Assembly (NLA) for about two years. When the 2017 Constitution entered into force, additional hearings and a legislative impact assessment became necessary. Due to these and other delays, the draft Act remained unenacted until the process was discontinued due to the March 2019 national elections. Throughout 2020, a revised RLPD draft took shape that passed the Council of State and the Cabinet. In August 2021, Prime Minister Prayut Chan-o-cha sent the draft to the House of Representatives.

9 Thirty-four meetings between October 5, 2021, and February 10, 2022.

10 Twenty meetings between February 28 and August 1, 2022.

11 Discarding three alternative versions (one sponsored by the House Committee on Law, Justice and Human Rights, and two private bills), the House majority selected the RLPD draft in September 2021 and established a special committee to work out remaining issues. The resulting draft was forwarded to the Senate in February 2022. A Senate special committee deliberated until early August, and on August 24, 2022, a House majority approved the finalized bill.

12 Other issues that received attention during the drafting included the types of deemed victims, the range of officials addressed by the Act, the principle according to which offenses under the Act are deemed nonpolitical for extradition purposes, the duty to record personal and circumstantial information regarding arrests, the obligation to provide victims with the right to access information, and the composition and powers of a new committee overseeing the implementation of the Act.

13 The SBPAC is a government agency with statutory powers and duties to administer the southern border provinces under the Southern Border Provinces Administration Act B.E. 2553 (2010).

14 Due to its long tradition and high prestige, and in particular since the term of Foreign Minister Siddhi Savetsila in the 1980s, Thailand’s Ministry of Foreign Affairs has enjoyed increasing influence on foreign policy formulation besides the prime minister and the military (Funston, 1987).

15 Draft Act submitted to the House of Representatives by the Prime Minister with letter of August 17, 2021 (n 7), Sections 11, 12 (Sections 12, 13 in the final version).

16 According to the Thai Constitution of 2017, legislative bills require approval from the House of Representatives and subsequently from the Senate (Sections 136, 137), but the House can, after a waiting period, reaffirm bills that were rejected by the Senate (Section 138).

17 House Special Committee meetings of October 26, December 3, 2021, and February 2, 2022.

18 House Special Committee meeting of November 8, 2021.

19 House Special Committee meetings of November 10 and 18 and December 14 and 22, 2021, and February 2, 2022.

20 Under the Thai Constitution of 2017, the 250 members of the Senate were appointed for a period of five years (2019–2024) by a committee that the military government had established.

21 Senate Special Committee meetings of May 30 and July 4, 2022.

22 Senate Special Committee meeting of August 1, 2022.

23 Draft Act for the Prevention and Suppression of Torture and Enforced Disappearance as sent by the President of the Senate to the President of the House of Representatives on August 11, 2022.

24 Decree of February 18, 2023, Government Gazette, volume 140, part 12 kor (19 February 2023), p. 1.

25 The Thai Constitutional Court has the power to invalidate legislation on constitutional grounds. The court has faced intense criticism since its establishment under the Thai Constitution of 1997 due to an alleged lack of independence and impartiality (Dressel & Tonsakulrungruang, 2019).

26 Constitutional Court ruling No. 7/2566 of May 18, 2023.

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Lasse Schuldt

Lasse Schuldt is an assistant professor in the faculty of law of Thammasat University. His research and teaching focus on fundamental rights, corporate and business crime, international criminal law in Southeast Asia, administrative law, and German law. He received his undergraduate education and doctoral degree in criminal law from Humboldt University Berlin, studied at University of Paris I Pantheon-Sorbonne, and practiced as an attorney in Germany prior to joining the faculty.