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Human Rights and (Im)mobility: Migrants and the State in Thailand

Annuska Derks

Migration and human rights stand in ambiguous relation to each other Different, at time contradictory, conceptions of human rights in the context of migrant labour in Thailand reveal the paradoxical role of the state and the law in the protection of migrants' rights The state is held accountable for the protection of the human rights of migrants residing

in its territory, even as it at the same time creates the conditions that may result in those migrants' exclusion from protection Examination

of this exclusion in the particular case of Cambodian migrant workers

in Thailand and their efforts to enact what Hannah Arendt called

"the right to have rights" reveals the chaos of human rights praxis in everyday migrant life.

Keywords: labour migration, human rights, "illegality", immobilization, resistance,

Thailand.

The human rights of low-skilled migrant workers have in recent yearsbecome a central issue in the debate about migrants in Thailand.The Thai government, its ministries and departments, human rightsgroups, international and local organizations and academics havecalled attention to the importance, limitations and violations of thehuman rights of migrant workers in the country

Yet what are these rights? And how are they enacted? This articleanalyses the different ways in which human rights are conceived

in the context of migrant labour in Thailand in order to drawattention to the penetration of the rhetoric of human rights into localparlance, governance and migrant advocacy (Messer 1993, p 241).Differing, at times contradictory, conceptions of human rights reveal

Human Rights and (Im)mobility: Migranfs and the State in Thailand 217

the paradoxical role of the state and the law in the protection ofmigrants' rights: the state is held accountable for the protection ofhuman rights of migrants residing upon its territory, and at the sametime it creates the conditions for the exclusion of those migrantsfiom protection While most analyses of this exclusion focus onlaws, issues of state sovereignty and the political realm, this articlehighlights more basic processes Examining the manifestation ofexclusion in the lives of Cambodian migrant workers in Thailandand, in particular, the ways in which they seek to enact rights in

a situation of apparent rightlessness, it aims to unveil the "chaos

of human rights praxis" in everyday migrant life (Goodale 2006,

p 491) I argue that the rights or rightlessness of migrant workersrelate not, as is often thought, to migrant "(il)legality" but rather

to processes of control and immobilization of migrant labour Thecase study of Cambodian migrant workers on the eastem seaboard

of Thailand reveals the ways in which, in the context of theseprocesses of immobilization, migrants seek to defy unfair treatmentand exploitation through practices, strategies and choices that are,like the migrants themselves, outside the law These practices,strategies and choices at once challenge and reaffirm migrants' state

of exclusion in Thai society

The data regarding the human rights rhetoric and praxis presented

in this article are drawn from a range of sources, includinginterviews with representatives of intemational and non-governmentalorganizations, government policy documents and research reportsand newspaper articles on migrant workers in Thailand Mostimportantly, the article draws on ethnographic material collected

in 2007 and 2008-9 during six months of field research amongCambodian migrant workers in Rayong province, on Thailand'seastem seaboard, and in their home villages in Cambodia Thefieldwork combined participant observation of migrant workers

at their work sites and in their living quarters with both informalinterviews and in-depth interviews with migrant workers and theirfamilies, their employers, local authorities and representatives ofmigrant-worker support groups

The Idioms of Migrant Rights

In his speech at the launch of the United Nations Development

Programme's 2009 Human Development Report on Overcoming

Barriers: Human Mobility and Development (UNDP 2009), former

Thai Prime Minister Abhisit Vejjajiva stated

Migration is an expression of the freedom and desire of each individual to seek better opportunities in life, mostly through the exercise of basic human rights, the pursuit of peace, education and employment As "Thailand" means "the land of the free",

it is our Government's policy to ensure that migrants can enjoy

their freedom and social welfare in Thailand while their human

rights are duly respected (Abhisit 2009, emphasis added)

These words reveal some interesting dimensions of the way in whichformer Prime Minister Abhisit and the Thai government conceive ofthe rights of migrant workers His statement draws upon the idea

of human rights as "given" in two contradictory ways On the onehand, by referring to the "basic human rights" of each individual,

he invokes the idea of human rights as "those rights [that] onepossesses simply by being a human being" (Dembour 2010, p 2).This idea of human rights based on "nature" underlies the dominantthinking about the universality of human rights (ibid.) On the otherhand, by referring to the role of government policy, Abhisit showsthat these rights are actually "given" by the host state They are,that is, rights that the host state — in this case Thailand — grantsnon-citizens who are working on its'territory (Noll 2010, p 243)

Furthermore, by referring to their human rights, he unwittingly

makes a distinction between the human rights of migrants and those

of others — of, that is Thai citizens Obviously, not everybody isequally human

This example illustrates well the ways in which human rights arelinked to the nation-state While we may often say that human rightsare innate and inalienable, states create people's actual entitlements tothose rights (Tumer 2006, p 2) Following Hannah Arendt, Agamben(1998, p 126) writes that "[i]n the system of the nation-state, theso-called sacred and inalienable rights of man show themselves to

Human Rights and (im)mobility: Migrants and the State in Thailand 219

lack every protection and reality at the moment in which they can

no longer take the form of rights belonging to citizens of a state."

As Agamben thus suggests with the greatest clarity, a paradoxdominates the relationship between human rights and migration: on

the one side, there is the dominant view that all humans have human

rights simply because they are human, but on the other side there

is the recognition that not all humans enjoy human rights (see also

Dembour 2010), in particular the so-called non-citizens

Among the different types of non-citizens, those who are whatNash (2009, p 1078) has called "un-citizens" and lack a recognizedlegal status in the countries in which they live or work find themselves

in the most precarious position "Illegality" or "irregularity" iscommonly seen as the main cause of the rightlessness and the otherproblems of low-skilled migrant workers Therefore, as former PrimeMinister Abhisit Vejjajiva (2009) formulates it, "the most effectiveway to protect these migrants is to legalize their status and bringthem into the formal labour market."

In line with this reasoning, the Thai government has developedseveral policies aimed at the legalization of undocumented migrantworkers and the promotion of regular migration As is often the case,provisions for the legalization of undocumented migrants have beencoupled to new and more aggressive measures to control bordersand suppress, arrest, prosecute and deport "alien workers who areworking underground" (Order of the Prime Minister's Office No.125/2553; see also De Genova 2009, p 446) While introduced inthe name of protecting migrants' rights, registration policies have

in fact served to enhance control, by "controlling the number ofmigrants, controlling their movements and controlling any perceiveddamage they might do to the Thai workforce and national security"(Pearson et al 2006, p 9) Instead of guaranteeing more protection,registration actually has become a means to tie migrant workers totheir employers and to prevent them fi'om circulating fi'eely and fi'omchanging employers at their own will (Derks 2010è, pp 926-27).'The fact that registration does not provide more protection hasbeen illustrated in reports on migrants' lack of access to basiclabour rights (Supang 2007, p 9) Migrants lack access to official

complaint mechanisms and the possibility of collective bargaining(e.g., Vitit 2005) An Intemational Labour Organization (ILO) studyfound that migrants working in Thailand's fishing, agriculturalsector, manufacturing and domestic-service sectors face violations

of their labour rights and substandard working conditions, includingunderpayment of wages, forced overtime, long and irregular workinghours and a lack of rest days It found a small number of migrants

in conditions equivalent to forced labour (Pearson et al 2006, pp.xxii-xxiii) The report argues that "laws and policies play a significantrole in how employers treat workers" and that the exploitation ofmigrant workers is directly linked to the absence of laws to protectthe rights of workers (p xxiv) Taking a so-called "rights-basedapproach" to migration, the ILO has called upon the Thai government

to adapt the intemational standards of protection to which it hascommitted itself as signatory of major human rights conventions andother agreements on labour and human rights (see e.g., Pearson et al

2006, pp 6-8) For the ILO, human rights are, in other words, not

"given" or "based on nature" They are moral and social standardsand principles that societies have "agreed upon" and "chosen toadopt" When translated into good laws, implemented throughsound procedures, these standards and principles will guarantee theprotection of rights (Dembour 2010, p 8)

But how pertinent is a conception of human rights which takes thelaw as central in the realization of fair processes and good govemance

to the case of migrant workers in Thailand? As a Human RightsWatch report points out, "many types of abuses are either embedded

in laws and local regulations or perpetrated by officials" in thecountry (Human Rights Watch 2010, p 2) Human Rights Watchnotes "widespread violations of migrant workers" who are "effectivelybonded to their employers and face rights violations from police,soldiers, immigration officials, and other government officials whothreaten, assault, and extort migrant workers with impunity" (ibid.,back cover) In the Thai context, then, it is impossible to see thelaw as central to the protection of rights Rather, the operation ofthe law there seems to betray the idea of human rights (Dembour

Human Rights and {lm)mobiiity: Migrants and the State in Thaiiand 221

2010, p 11) The state and state authorities are part of the country'shuman-rights problem Accordingly, human-rights organizations likeHuman Rights Watch, do not conceive of human rights as "natural"

or "agreed upon", but rather as something that has to be continuously

"fought for" (Dembour 2010, p 3)

In fact, legal frameworks designed to enhance the protection ofmigrant workers provide Thai employers and local authorities withinstriunents of control over those workers Human-rights abuses arerelated not only, as is often argued, to the absence of the law (that

is, the lack of rule of law, weak state structures and corruption)but also to the actual workings of the law (Derks 2010a, p 846).International and non-governmental organizations have called uponthe state to take measures against human-rights abuses but have atthe same time found themselves faced with laws and policies thatcreate conditions for abuse and labour subordination (Rudnyckyj2004) This realization that the state and its laws are in actual factnot protecting migrants but rather excluding migrants access tothe rights enjoyed by citizens underlies much recent scholarshipexploring the link between migrant life and Agamben's concept of

"bare life" (1998)

Rightlessness and Innmobilization

How do these contradictions in the ways in which human rightsare conceived in the migrant context as "given", "agreed upon" or

"fought for" (Dembour 2010) relate to migrant workers' actual livedexperiences of work and life in Thailand? How do these workers

perceive their rights?

I do not claim here to know migrants' views on human rights; theyactually hardly refer to the term when asked about their work andlife in Thailand Those who did would probably fit best Dembour'sdescription of people who see human rights as something "talkedabout" (Dembour 2010, p 2) or, maybe more correctly, "heard o f

— yet with little relevance for their lives For example, Thou,^

a Cambodian working as a deckhand on a Thai fishing vessel

pointed at the disposability of his labour and that of his peers when

he noted, "Living here means that we don't have rights We don'thave much fieedom We have no clear timefiame When we workfor them [fishing-vessel owners], it is all up to them When theywant us to stop, for several months, for years, it's up to them."^Sokhom, working on another Thai fishing vessel, explained that hehas no chance to complain: "In Cambodia we have a law, but here

in Thailand there is no clear law It is all up to the boss.'"* Lap,another migrant fisherman fi-om Cambodia, linked this powerlessness

to their "outsider" position within Thai society: "The workers on

the [Thai] fishing vessels think that we Khmer [khmaei yeung] are

in another country and have no right to complain."^

Lap's remark tallies with Prem Kumar's and Grundy-Warr'sanalysis of the structures that deny migrants the rights taken forgranted by citizens (2004, p 57) Prem Kumar and Grundy-Warr basetheir analysis on Agamben's conceptualization of "bare life", whichhas become a popular concept among migration scholars seeking "todelineate the plight of refiigees and unauthorized migrants floating

in the global economy" (Lee 2010, p 57) Bare life refers to acondition, a form of life, that is "stripped of every right" (Agamben

1998, p 183) It is a life that is excluded fiom the political order,and yet in continuous relationship with the sovereign power thatproduced it The popularity of the concept of bare life in migrationscholarship has much to do with Agamben's description of theambiguity of the lives of those who are "neither fially recognised

as members nor completely excluded as strangers" (Lee 2010,

p 61) Prem Kumar and Grundy-Warr (2004) argue that the distinctionbetween included and excluded forms of life, between those whomthe sovereign will protect and those whom it will not — between,that is, the citizen and the migrant worker in the present context — isintegral to the sovereign power and the continuation of the system

of the nation-state It is, they stress, through the encounter with the

"unruliness" of the irregular migrant that the norm is defined At thesame time, that same distinction creates the conditions for makingmigrants into govemable and labouring subjects, because it is, as

Human Rights and {lm)mobility: Migrants and the State in Thailand 223

De Genova (2010, pp 38-39) states, "precisely their distinctivelegal vulnerability, their putative 'illegality' and official 'exclusion'that inflames the irrepressible desire and demand for undocumentedmigrants as a highly exploitable workforce"

How is this "exclusion" manifested in actual migrant life? ForPhirun, a construction worker from Cambodia, the line betweeninclusion and exclusion became evident soon after he first enteredThailand He had found work at a construction site in Bangkok where

he was, after fewer than four months, caught in a police raid andtaken to a detention centre He stayed in detention for fifty-sevendays, sharing the crowded and dirty premises with some 500 othermigrant workers from Cambodia, Laos and Myanmar Eventually,

he and his other "illegal" compatriots were taken to the Cambodianborder at Poipet.^

Detention and deportation are the ultimate means of emphasizing

"the borders demarcating the included" (Prem Kumar and Warr 2004, p 36) and of "perpetrating, embellishing and reinstating

Grundy-a 'threshold thGrundy-at distinguishes Grundy-and sepGrundy-arGrundy-ates whGrundy-at is inside fromwhat is outside"' (De Genova 2010, p 46, quoting Agamben 1998,

p 131) What is less often highlighted is that this threshold isconstantly crossed, and by people going in both directions Afterbeing deported without having eamed a baht, Phirun soon crossed theborder again to seek work in Thailand This time he went to Chonburi,where he not only eamed a steady income in construction but alsomet his wife-to-be, a twenty-year-old woman from Battambang namedSey When I met the two of them, they had just retumed to Thailand

— again — from their first trip together to Cambodia They wereboth working in Rayong for a subcontractor who employed a team

of twenty-one constmction workers, among them Cambodians andKhmer-speaking Thai from Isan

Cambodian migrant workers in Rayong have a saying: "In

Thailand it is easy to find [eam] money, but difficult to live" (new

srok Thai sroul rook luy, pibat ru 'eh new) Migrant workers made

it clear that their motivations for coming to Thailand related to thefact they could "eam a lot more money in Thailand because there

are hardly any jobs in Cambodia."^ Yet it also means having to livewith the constant and random threat of extortion and detention onthe part of the police While it was obvious to Phirun that in terms

of earning an income Thailand "wins fiom us Cambodians" (can

khmaei yeung), he was also well aware of his precarious position.*

As an unregistered migrant worker, he had to be on the alert forthe police at all times He had had a registration card during hisfirst year of work in Chonburi, but his boss missed the deadlinefor its extension He has since worked without documentation Hiscurrent employer in Rayong told me that he did not even considerregistering his migrant workers, because he was never sure aboutthe next construction project Although he was very pleased with thework and meekness of his Cambodian workers, this employer knewthat, as soon as he had no more work to offer them, they wouldmove on to another employer He would lose any money invested

in their registration Therefore, instead of registering his migrantworkers, Phirun's employer paid a monthly sum to individuals fiomthe immigration department, to the police and to a high-rankinglocal official In return, he was wamed in advance of police raids,

in time for him to hide his undocumented workers.'

About a month after telling me about these arrangements, Phirun'semployer called to tell me that he had moved his Cambodianworkers fi'om Rayong to Sattahip, in the neighbouring province ofChonburi The police in Rayong had been raiding his site too often,severely disturbing the working routines of the migrant workers.When I visited Phirun and Sey at their new work site in Sattahip,they described how they had to run and hide in the nearby busheswhenever the police came In Sattahip, on the contrary, they feltmuch more at ease They lived in temporary shacks built on a barepiece of land, next to the construction site and out of sight fiomthe main road The police had so far not bothered them They evenwent by themselves to the nearby market, whereas in Rayong theirsupervisor had always accompanied them

Phirun's story illustrates well the constant threat of arrest anddeportation that migrant workers face, their dependency on employersfor income and shelter as well as for protection against the state and

Human Rights and (Im)mobility: Migrants and the State in Thailand 225

the weaknesses of the registration system It makes clear that allthese factors work together to curtail migrants' freedom of movement

At the same time, it also illustrates some of the ambiguities thatcharacterize the large presence of migrant workers in Thailand.Certain sectors of the Thai economy, notably construction, fisheries,agriculture and domestic work face a labour shortage These aresectors that have been shunned by Thais, who have or think thatthey have more attractive employment altematives at home andabroad This shortage has created the conditions for the massivemobilization of labourers from neighbouring countries (Supang

1999, p 161) While constituting the backbone of Thailand's cost, labour-intensive industries, the estimated two million migrantworkers in the country are seen at the same time as a threat to itssocial order, national security and even to the health of its people

low-In such a context, the state attempts to tum migrant workers into a

"captive and tractable workforce" whose mobility must be controlled(De Genova 2010, p 58) It practices, that is, what I have elsewherecalled the immobilization of essentially mobile labourers (Derks

20106, p 916)

Ahnost all Cambodian migrants whom I met during my fieldwork

in Rayong had stories to tell about immigration officials arriving

on motorbikes and entering their living compounds in order to huntdown undocumented migrants, about not daring to leave their workingand living premises for fear of police arrest, about police taking

migrant workers far away into the prey (forest, bush) and demanding

exorbitant fees before letting them go, about the bad treatment andlow-quality rice served in detention centres and about the fear ofbeing deported to Cambodia without money It is subjection to such

"quotidian forms of intimidation and harassment" (De Genova 2002,

p 438), rather than actual detention and deportation, that serves tocontrol and immobilize migrant labour

These daily forms of intimidation and harassment are, however,related not only to migrants' status as documented or undocumentedworkers but also to the idea that migrants pose a threat to what

in an "Announcement of the Province of Rayong on Determiningthe Measures to Control Illegal Alien Workers" is labelled "the

public order and peace, and the lives and property of the citizenry"(quoted in Human Rights Watch 2010, p 28) Such views attribute

to migrants involvement in all kinds of vice — gambling, drug use,alcohol abuse, commercial sex — and violent behaviour While theseviews pertain to migrant workers generally, they are most pronounced

as they relate to workers in and around ports In a way, one mayconsider ports and their surroundings as an area outside the law, notonly because of employers' use of undoctunented migrant labour orbecause of migrant workers' involvement in "illegal" activities, butalso because of the refusal of the police to intervene in criminalinvestigations when cases concern migrant workers In those cases,

as a local resident in Rayong observed, "The police do not interfere.They just dump the body in the sea.'""

In an effort to keep control of "unruly" migrant behaviour,Rayong province — like the four other provinces of Phang Nga,Phuket, Ranong and Stirat Thani — issued a decree according towhich migrants are prohibited from leaving their places of work

or accommodation after curfew hours, from gathering in groups ofmore than five and from possessing mobile phones or registeringmotorbikes These regulations, though not necessarily strictlyenforced, serve to restrict migrants' access to social networks andtheir freedom of movement while enhancing their dependence ontheir employers for protection against detention and deportation(Derks 20106, p 928)

These threats of extortion, detention and deportation may be mostpronotmced as they relate to undocumented migrant workers, but theyare certainly not limited to those workers Again, it is often thoughtthat "illegality" is a major cause of the rightlessness and problems

of low-skilled migrant workers and that documented migrants areprotected against abuse and exploitation (cf Killias 2010) Therealities of migrants' lives show, however, that a neat distinctionbetween "legal" and "illegal", "documented" and "undocumented",and the common association of that distinction with the differencebetween "protection" and "exploitation" are difficult to maintain(Derks 20106, p 927) Migrant workers — male and female — makeuse of a myriad of "legal", "semi-legal" and "illegal" schemes to

Human Righfs and (Im)mobility: Migranfs and the State in Thailand 227

cross borders and seek work abroad, often with the connivance oflocal authorities in the destination country On site, documented,semi-documented" and undocumented migrants are engaged in thesame activities alongside one another As the example of Phirunshows, undocumented migrants are not a separate, hermetically sealedcommunity, but engage as neighbours, co-workers or customers on

a daily basis with other migrants as well as with citizens of thecountries in which they work (De Genova 2002, p 422)

Although migrant workers like Phirun are everywhere, they have

to remain invisible Although pronouncements of official policy indestination countries may claim a respect for the rights of migrantworkers, they often have, as Lap said, "no right to complain".They enjoy, that is, no right to claim rights Although migrantshave entered the Thai labour market on a massive scale, they are

in fact, as Thou made clear, disposable workers These realtiesallow understanding of the "inclusive exclusion" that characterizesthe position of migrant workers in Thailand While this ambiguitycan be found in Agamben's description of the life of a personthat "cannot be included in the whole of which it is a memberand cannot be a member of the whole in which it is alreadyincluded" (1998, p 25), those applying his argument within thecontext of intemational labour migration have too often focused

on the binary pairs of the included and the excluded, of "politicallife (legality, rights, citizenship) and bare life (illegality, no rights,nonparticipation)" (Lee 2010, p 63).'^ In actuality, it is not so easy

to draw a simple line between citizens who enjoy juridical-legalrights and the "bare life" of migrant workers (Ong 2006, p 9).Many Thais do not enjoy fiiU access to rights in their own country,despite their citizenship And migrants resist immobilization andexploitation despite living in a context of apparent rightlessness,

as the next section makes clear

Dignity and Everyday Fornns of Migrant Resistance

Hannah Arendt famously introduced the notion of "the right tohave rights" (1968, pp 297-98), by which she meant the right of

every individual to belong to humanity, to some kind of organizedcommunity in which human dignity is guaranteed through politicalaction Arendt did not believe that rights are given, but rather thatthey are enacted She showed that those who are most in need ofprotection — the refugee, the stateless individual and, one mayadd, the undocumented migrant — and who live outside a politicalcommunity and without political status are in no position to claimrights They are deprived of "a place in the world which makesopinions significant and actions effective" and thus also of "theright to action" (ibid., p 296) This state of deprivation does not,

of course, mean that they do not act, but that they are denied thecapacity to act collectively in the public realm Yet if the right tohave rights cannot be enacted in the public realm, then, I wouldargue, it is all the more important to uncover the ways in which

it is enacted through a variety of actions and practices performedbeneath the surface

Recent scholarship has addressed the question of how refugees

or (undocumented) migrants enact, despite their outsider positionand situation of rightlessness, the "right to have rights" in ways thatcapture public awareness It has focused, for example, on protests

on the part of migrant workers in the United States in 2006 (De

Genova 2009) and the activities of the sans-papiers movements

in France and elsewhere in Europe (Krause 2008) Such publicacts, in which officially rightless and deportable migrants renderthemselves visible and articulate political demands, offer rareexamples of the ways in which migrants in certain places and

at certain times collectively defy exclusion and become politicalbeings that refuse to accept their "bare life" (Lee 2010, p 65; DeGenova 2009, p 451)

Other studies have directed attention to how others claim "theright to have rights" on behalf of migrant workers Ong (2006) andElias (2008; 2010), for example, explore the role of non-governmentalorganizations in making claims on behalf of "underpaid, starved,and battered" migrant workers (Ong 2006, p 195) These kinds

of activism, instead of calling upon universal human rights, tend