The international human rights system consists primarily of two parts: international human rights treaties to which countries are invited to become parties on the basis of their consent, and the UN's own jurisdiction, through the UN Human Rights Council, covering all countries even if they do not consent to the coverage. The Universal Periodic Review (UPR) belongs to the latter part of the system and Thailand's recent appearance before this process on Nov 10, in public and online, was eye-opening.
The UPR was born with UN reforms in 2005 when the UN Human Rights Council was established to replace the old dysfunctional UN Commission on Human Rights. In its origins, the UPR was intended to be a new mechanism encompassing all countries -- thus "universal". In reality, it's a soft, engaging and interactive process whereby a country's human rights record is vetted by other countries, thereby being a kind of "peer review" every 4-5 years. The information base for the review is derived from three sources: a report from the country under review, a report from the UN (especially recommendations from the various human rights treaties and from the UN special rapporteurs/independent experts and working groups), and a report from stakeholders, including NGOs.
During an open dialogue with the country under review, the other countries participating in the UPR make recommendations for improvements, which the country in question is entitled to accept or decline. In the first few years after the UPR was implemented, the jargon used by countries was to "support" and "not support" recommendations. The language has since mutated. Today, the phrase "not support" is avoided by countries. Instead, they simply state that they "take note" of various recommendations, even though in substantive terms, this is tantamount to a rejection of those recommendations. The "take note" phenomenon usually camouflages various defects in the country concerned -- in essence, a blind spot which the country prefers to hide.
Thailand is now in the middle of its third cycle of the UPR. Last week witnessed a range of comments and recommendations from other countries addressed to Thailand and there is now a two-month period during which the country is to inform the UN on which recommendations are to be accepted. What should be our predictions on the matter?
For decades, the country has done relatively well on economic, social and cultural rights, although now dented by the havoc wreaked by Covid-19. The country's health care system, particularly its "30 baht healthcare" or universal healthcare scheme available for all Thais, has been lauded globally. The main stumbling block has been the issue of political rights which is closely linked with the country's quest for democracy. The rampancy of coups d'etat has undermined that quest and the perpetuation of a monopolistic power base is most concerning.
The right to freedom of expression and freedom of peaceful assembly is tested and constrained continually in the national process, despite the accent on "sustainability" voiced by the authorities. The constraints imposed on those rights include the implementation of the emergency decree, various provisions of the Criminal Code and a number of security-oriented laws such as the Computer Crimes Act. In the UPR, various countries have called consistently for a review of these laws and related negative practices.
Interestingly, when the country appeared at the first UPR cycle in 2011, this was the time of a civilian government after a very divisive period of street demonstrations between opposing factions. The country accepted 134 recommendations from the international community and did not accept 38 recommendations. The latter included suggestions for the country to ratify the Rome Statute of the International Criminal Court, to abolish the death penalty, and to reform its lese majeste law, martial law and emergency decree. As part of its pledges under the UPR, the country issued a standing invitation to enable UN special rapporteurs and working groups to visit the country.
The second cycle took place in 2016 and the country was in the middle of its interim constitution after a coup. Thailand accepted 187 recommendations and "took note" of 62 recommendations. The latter again included suggestions to ratify the Rome Statute and the refugee convention, to abolish the death penalty, to reform the lese majeste law and the Computer Crimes Act, and to reform various acts of military rule, such as the use of military courts to try civilians and various forms of detention.
It can be predicted that with the third cycle, many of the recommendations as above will appear again and the country will be in a predicament: to accept or not. There are new challenges which the country has to address, such as children's freedom of expression and the regrettable fact that many children have been arrested and prosecuted by the authorities for taking part in street demonstrations. There is also an ominous draft law on NGOs which will lead to more state control over and surveillance of civil society activities.
The preferred approach is to accept as many recommendations from the international community as possible since this will also help with the push for reforms. The country should avoid the "take note" syndrome. It should also implement its pledges effectively, in particular, to invite more UN mechanisms to visit the country.
Given that there is now before parliament an important draft law on the issue of torture and enforced disappearances, why not invite for a complimentary visit the UN special rapporteurs on the issue of torture and summary executions and the UN Working Group on Enforced Disappearances?
Where there is political will, there is a preferred way.
