Table Of ContentSTATELESSNESS, HUMAN RIGHTS AND GENDER
Irregular Migrant Workers from Burma in Thailand
Refugees and Human Rights
Volume 9
Editor-in-Chief
Professor Anne F. Bayefsky
York University, North York, Canada
Editoral Board
Dr. Chaloka Beyani
Law Department, London School of Economic & Political Science, London, U.K.
Juan E. Mendez
Executive Director, Inter-American Institute for Human Rights, Costa Rica
Dr. Boldizsár Nagy
International Law Department, Eötvös Loránd University, Budapest, Hungary
The Refugees and Human Rights Series aims to meet the increasing need for
literature which probes the nature and causes of forced migration, the modalities
and procedures employed when refugees present themselves, and the manner in
which the human rights of refugees are, or should be, promoted and protected.
STATELESSNESS, HUMAN RIGHTS
AND GENDER
Irregular Migrant Workers from Burma in Thailand
By
Tang Lay Lee
MARTINUS NIJHOFF PUBLISHERS
LEIDEN / BOSTON
A C.I.P. Catalogue record for this book is available from the Library of Congress.
Printed on acid-free paper.
ISBN 90 04 14648 2
© 2005 by Koninklijke Brill NV, Leiden, The Netherlands
Koninklijke Brill NV incorporates the imprints Brill Academic Publishers,
Martinus Nijhoff Publishers and VSP.
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Printed and bound in The Netherlands.
To
the stateless women, children and men
in our brave new world
FOREWORD
It is indeed time for a new look at the problem of statelessness. Up to now,
lawyers and political scientists have tended to view ‘being without a state’ or
having no nationality as the regrettable by-product of the otherwise generally well-
ordered society of nations. In this world, each State is competent to decide who
are its citizen members, and yet none is obliged to ensure that no one falls between
the gaps when national laws just do not mesh.
Over the sixty years or since the founding of the United Nations, inter-
national discourse has failed to release statelessness from this traditional pattern of
international law analysis. So the stateless person has come to be seen as an
anomaly, someone with no definite legal status and thus of lesser ‘social value’. The
answer to this untidy situation was long considered to lie in providing for the
status of stateless person, while adopting a raft of technical measures aimed, ever
hopefully, at reducing the incidence of statelessness through the adoption of
comprehensive and enlightened legislation.
Tang Lay Lee’s pioneering work introduces us to a new form of stateless-
ness, and gives us a first sense of its breadth and scope. She demonstrates how the
traditional terminology of statelessness is often confusing, talking sometimes of de
jure, and sometimes of de facto statelessness, but that the central conceptual issue
remains that of being without protection. This in turn leads to multiple
disadvantages for the new stateless, such as restrictions on freedom of movement,
uncertainty and apprehension when dealing with the authorities, and the
persistent threat and reality of exploitation, particularly in the labour market. Her
approach to this major contemporary problem has a solid historical base, but also
shows clearly the limits of the legal theoretical model when confronted with the
reality of irregular migration.
It is an inescapable fact of modern life, and a consequence of an increas-
ingly globalized economy, that many people do now and will live and work
outside the country of their birth; indeed, there is a constancy in the per-
centage of the world’s population B between 2.3% and 2.9% B which can be
expected to move. It is equally a fact of life that much of that migration will be
irregular, and that it will be driven by a demand for services in receiving countries
which the local workforce is unable or unwilling to provide. At the same time, the
shadow status of today’s irregular migrants opens the way to discrimination and is
as much a barrier to protection and the full enjoyment of human rights, as any
formal or legal statelessness.
As Tang Lay Lee shows, this reality is well illustrated by the situation of irregular
migrant workers from Burma in Thailand, and particularly in the case of women
and children. The phenomenon, of course, is common to every region, especially
in countries where there is a demand for services and a tacit acceptance of
migration to this end. Irregularity, discrimination and exploitation are often
tolerated and welcome, because of the supposed ease with which the ‘problem’ can
be repatriated in time of economic downturn or local unrest. Even in the 1940s,
there seems to have been an inkling of the fact that the ‘primarily legal problem’ of
stateless persons in fact hid a more complex reality, but that was not what the first
generation of international treaties, such as the 1954 Convention relating to the
Status of Stateless Persons, were intended to address. It is, however, a substantial
challenge for the 21st Century, in which the international community seems
reluctant to engage with the rights and the protection of those who are effectively
disowned by their countries of origin, and yet barred also from the protection of
the community in which they expend their labour.
When confronted with the evidence, States, and even most international
organizations, will likely content themselves with formally accepting the existence
of this new and regrettable phenomenon, while carefully avoiding doing anything
practical and positive about it. For this reason alone, Tang Lay Lee’s study and her
account of the plight of the unprotected should be read by all whose responsi-
bilities touch on the migrant, whether as advocates, policy makers, or legislators;
these are matters of international concern and concerted efforts will be required if
the rights proclaimed as universal and inalienable are indeed to be realized.
Guy S. Goodwin-Gill
Senior Research Fellow & Professor of Internatioviinal Refugee Law
All Souls College
Oxford
CONTENTS
Foreword VII
Preface XI
Acknowledgement XIII
CHAPTER ONE
Statelessness and Migration 1
CHAPTER TWO
The International Law of Statelessness:
Contemporary Issues 15
CHAPTER THREE
Stateless Persons, Refugees and Irregular Migrant Workers:
Merging Categories of Unprotected Persons 49
CHAPTER FOUR
Stateless Persons, Refugees and Irregular Migrant Workers:
Protection and Human Rights 79
CHAPTER FIVE
Gender Discrimination and Statelessness 115
CHAPTER SIX
Burma and Thailand:
Interface Between Domestic and International Law 151
CHAPTER SEVEN
Gendered Aspects of Statelessness and Irregular Migrant Workers from
Burma in Thailand 179
CHAPTER EIGHT
Conclusions 213
Appendices 223
Select bibliography 267
Index 275
