Saturday, January 31, 2009
JURIST Staffer Necia Hobbes, Pitt Law '11, volunteered in Chiang Rai before starting graduate school:
In the United States, citizenship is granted to those born within US borders or to US citizen parents, and can be obtained through naturalization. The Kingdom of Thailand, however, places more severe restrictions on obtaining citizenship, effectively limiting human rights access for the hill tribes, indigenous populations living along the Northern and Western borders of the Kingdom. Lacking citizenship status, thousands of indigenous persons are excluded from education, health care, and employment, and the vulnerable population is an easy target for the human trafficking operations that plague Southeast Asia.
I witnessed the effect of Thailand's restrictive citizenship laws while traveling with a mobile medical clinic among Lahu and Karen hill tribe settlements in the jungles of Northern Thailand. Many hill tribe members lacked citizenship status, although they had been born and raised within Thai borders. Anyone over the age of 15 must prove citizenship to have access to health care, education, employment, and even to be able to travel freely. Without national citizenship, hill tribe members turn to subsistence farming or other means of employment, such as prostitution, in order to survive.
As we traveled among villages, we brought vegetables, rice, and beans in our backpacks so that we could share meals consisting of more than the usual water-soaked bamboo and saplings. In the villages, starvation and malnutrition are constant problems, simple illnesses are life-threatening, and mortality rates are high. Some people successfully bribe local officials so they can travel and find menial labor, but the threat of deportation and ethnic cleansing lies just across the Burmese border. I met people who had lived in Thailand their whole life, but lived in constant fear of detention or even deportation because of their lack of citizenship.
The major legal barrier to citizenship is the Nationality Act B.E. 2508 (1965) as amended by Acts B.E. 2535 No. 2 and 3 (1992). Most hill tribes were not included in Thailand's first national census in 1956, which recorded Thai origin and nationality. Nine years later, the government passed the Nationality Act, which guaranteed citizenship only to people who could prove that they were born to Thai citizens or legal aliens. The birth registration process is inadequate and must be improved, but unless a person can prove that the parents listed on their birth certificate are Thai citizens or legal aliens, even a birth certificate will not be enough to obtain citizenship. Since most people in the hill tribes were not registered as Thai or otherwise in the first national census, neither they nor their children are guaranteed citizenship under the Nationality Act.
Additionally, Section 7 of the Nationality Act excludes from citizenship the children of parents who entered the state illegally or temporarily. Hill tribe members have been fleeing from Burma for nearly 40 years and joining hill tribes in Thai jungles near the borders, so Section 7 excludes them and their children from citizenship, unless they can prove they entered Thailand legally. With no legal records, it is difficult for hill tribe members whose ancestors have been in Thailand for centuries to distinguish themselves from hill tribe members who entered as unregistered refugees or who are the children or grandchildren of unregistered refugees.
Numerous international aid organizations and U.N. agencies, including the U.N. High Commissioner for Human Rights and the Committee on the Rights of the Child, have called for changes to Thailand's Nationality Act, birth registration process, and legal process for obtaining citizenship. They also recommend that Thailand loosen restrictions on basic rights so that persons who are not citizens can at least access opportunities like employment and basic health care.
To resolve the problems of statelessness, Thai regulatory bodies and agencies have attempted to allow certain portions of the hill tribe population to obtain citizenship, but the Nationality Act remains intact. In 2000, the Cabinet of Ministers decreed that hill tribe children could obtain citizenship if their parents entered the country before October 4, 1985 and if they could prove that they were born in Thailand. However, this decree and other regulations are not entirely consistent with each other, nor widely understood or enforced. Without a fundamental change to the Nationality Act, it seems unlikely that these piecemeal regulations will have much of an effect.
Friday, January 30, 2009
Gunesh Bakgalova, Pitt Law LLM '09, compares "right to rest" laws in her native Turkmenistan with American labor regulation:
When I came to the United States I was very surprised to hear that employers are not required to give employees paid vacations, or to include paid leave in employment contracts. The so-called "Right to Rest" grants employees the right to paid vacation and leave, and is one of the Human Rights proclaimed in the UN Universal Declaration of Human Rights. In Turkmenistan, this right is guaranteed by the Constitution, but in the US, the Family Medical Leave Act only requires that certain employers grant employees up to 12 weeks per year of unpaid leave for births, adoptions, and medical issues.
The US government is expanding the applicability of the Act, but only in a limited capacity. As of January 2009, the Act also permits 26 weeks of unpaid leave for certain employees to care for injured family members in the US Armed Forces. Despite this expansion, the Act continues to apply only to certain types of employers. Furthermore, it does not require those employers to grant paid leave.
In Turkmenistan, all employers are required to grant paid leave, and thus all employees are covered by our legislation. Furthermore, as employees, we are guaranteed not only this Right to Rest, but three specific types of paid leave: (1) main annual leave, (2) additional leave, and (3) social leave.
Main annual leave
Employees automatically receive paid annual leave of 24 calendar days per year. A longer vacation is granted to teachers, professors, and disabled persons, who receive 35 calendar days per year of paid annual leave.
In certain circumstances, employees can receive extended paid leave in addition to their main annual leave. First, annual leave can be extended up to 15 additional calendar days if employees work in harmful or dangerous conditions. Second, when a couple gets married, they can choose two family members who will get an additional leave of ten days each for their wedding. Finally, additional leave of ten days can also be granted to two close relatives of a deceased person for the person's burial and commemoration.
Women in Turkmenistan receive 112 calendar days of social leave for pregnancy and child birth, 56 days prior to and 56 days after childbirth. If the mother or child experiences medical complications, the mother's leave can be extended up to 16 calendar days. Additionally, if the woman has multiple births, then maternity leave is extended by 40 days for a total of 152 calendar days. Social leave is unique because it not only grants additional paid days of leave, but allows mothers to extend their time off after their paid leave has ended. After paid social leave, the employee-mother can take unpaid social leave until the child reaches three years old. She has the right to return to work at any time, and her position will be kept open until the child reaches three years old.
These specific provisions, now required by law, stem from cultural expectations and the common practice of providing all employees in Turkmenistan with paid leave. The Right to Rest was legally granted to citizens of Turkmenistan over 70 years ago under the 1936 Constitution of the U.S.S.R. After Turkmenistan gained independence from the U.S.S.R. in 1991, the general Right to Rest was granted under Article 32 of the 1992 Constitution. Later, these specific requirements for main annual leave, additional leave, and social leave were adopted under the Turkmen Code of Labor Laws.
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