II. Key Recommendations
V. International Legal Standards On Trafficking In Women
VI. Recruited In Thailand--Sold On Japan
VII. Servitude In The "Snack Bars"
VIII. Deportation As "Illegal Aliens"
IX. Response Of The Japanese Government
X. Response Of The Thai Government
XI. International Response
International Organization For Migration (IOM)
International Labor Organization (ILO)
World Health Organization (WHO)
X. RESPONSE OF THE THAI GOVERNMENT
The Thai government has identified the eradication of trafficking in women and children for sexual purposes as a priority. Its response to the problem
has been articulated largely through the framework of its "National Policy and Plan of Action for the Prevention and Eradication of the Commercial Sexual Exploitation of Children" (hereinafter, National Plan of Action), adopted in 1996.(1) Although the policy's primary goal is the eradication of the sexual exploitation of children, many of its provisions apply equally to adult women, and there is a strong emphasis on the problem of trafficking in persons for sexual purposes, both into and out of Thailand. The government has also highlighted specifically the problems of Thai women trafficked to Japan for sex work. On September 28, 1999, the Thai Embassy in Tokyo organized a conference to identify the problems that Thai sex workers face in Japan and to discuss solutions. Officials from the Thai and Japanese governments as well as representatives from Japanese NGOs were invited to participate. The Thai government estimated that there were more than 30,000 Thai women working illegally in Japan as of March 1999, and the Thai ambassador to Japan, Sakthip Krairiksh, insisted, "These women are not criminals. Instead, we must find more effective ways to deal with gangsters who bring them in and exploit them inhumanely."(2)
Thai policy-makers' commitment to combating trafficking in women has yielded some positive results. Nonetheless, trafficking abuses have remained largely undeterred and unpunished. In part, this is due to flaws in the design and implementation of their anti-trafficking initiatives. The attention given to this issue by the Thai government has increased awareness among Thais of the risks of female migration to Japan, and useful services have been provided for trafficking victims who need assistance in returning home to Thailand. Government efforts have also been notable for their strong emphasis on cooperation with nongovernmental and intergovernmental organizations in Thailand. However, the effectiveness of these efforts has been limited. Government policies have been undermined by gender stereotypes and weak enforcement of anti-trafficking legislation. Ultimately, women do not have access either to sufficient employment opportunities in Thailand to deter overseas migration nor to the information and/or to services they would need to protect their rights in the course of such migration. In some cases, government practices have even infringed on women's rights to equality and freedom of movement. In addition, women from the "hilltribes,"(3) who are among the most disadvantaged and vulnerable populations in Thailand, have been largely excluded from both prevention efforts and victim services.
Combating Trafficking in Women Education and Awareness-Raising Programs
The Thai government's efforts to combat "trafficking" in women are premised on an understanding of the term that includes both consensual and non-consensual migration for sex work. The National Plan of Action identifies the provision of universal access to education and/or vocational training, along with efforts to raise public awareness about the dangers of child prostitution and of sending children abroad as commercial sex workers, as key strategies for preventing the commercial sexual exploitation of children. Thus, for example, the National Education Act adopted in 1999 promises that compulsory education will be extended from six years to nine years.(4) This could ameliorate the problem of child prostitution both by keeping girls in school longer -- many girls enter the sex industry soon after graduating from sixth grade at ages as young as twelve or thirteen -- and by preparing girls for a wider variety of jobs. The Thai government has also tried to increase education and employment opportunities for adults, and particularly for women, through vocational training programs. The Occupational Assistance Division of the Department of Public Welfare, for example, operates seven provincial vocational centers across the country, offering three to six month courses for women aged fourteen to thirty-five years old.(5) These programs are explicitly designed to provide poor women and girls with means for alternative employment, so that they do not become involved in prostitution.(6)
Efforts to raise public awareness regarding prostitution and trafficking have consisted of large-scale information campaigns in villages warning women about the dangers of entering the commercial sex industry, as well as the dangers of seeking employment abroad. The government's warnings against overseas migration have been reiterated as new incidences of trafficking into forced sex work are revealed.(7) Some government warnings have focused on Japan specifically, telling women how hard life would be in Japan, that they would be beaten and otherwise abused,(8) and posters have been distributed cautioning women that, if they try to go to Japan, they might be forced into prostitution.(9) These campaigns have not, however, included information that might assist women in migrating safely, such as information about their rights as overseas workers or about services available to them in Japan.
In addition to long-term education and development policies, the government has also tried to prevent trafficking in women--understood by the government to include any facilitated migration for sex work--by denying passports to "potential victims." While preventing trafficking is obviously an important goal, this policy constitutes an invasion of women's and girls' privacy and results in unacceptable restrictions on women's and girls' freedom of movement on the basis of their suspected status as victims, or potential victims, of a crime. An informational booklet published by the Ministry of Labour and Social Welfare's Department of Public Welfare (DPW) explains that one of DPW's "Services for Women" is "investigating the background of women between fourteen and thirty-six years old who have requested passports from the Ministry of Foreign Affairs (MFA), and have been suspected by MFA of being procured to sexual business in foreign countries."(10) An official at the Occupational Assistance Division of DPW, who participates in these reviews, described the process to Human Rights Watch:
Women apply for passports with the following reasons: most to travel as a tourist, some to marry, and some to work. If they are suspicious of a woman's reasons, the Ministry of Foreign Affairs sends the names of the women here. To see if the woman should be approved for a passport, we ask the provincial official to visit her home, look at the status of her family, and talk to her mother, father, and other family members. If the woman has said that she wants to go abroad to marry someone, we ask her about the occupation of her proposed husband, how high a salary he makes, how long they've known each other, and whether he visits her here. We recommend approval for about half of the cases and rejection for the other half, but the final decision is up to the Ministry of Foreign Affairs. Reasons for rejection include: she doesn't have work in Thailand; her family doesn't have enough money to give her to travel; her documents, such as her marriage license, aren't valid; the address she gave for her boyfriend -- if she says she is going abroad to marry -- isn't correct.(11)
Officials from the Ministry of Labour and Social Welfare also examine Thai passengers departing for Japan at Don Muang airport in an effort to weed out persons going to Japan to work illegally on tourist visas.(12) And in 1995, Thai Labour and Social Welfare Minister Sompong Amornwiwat met with officials from the Japanese government and explained that many Thai workers had been lured into Japan and cheated by illegal businesses there. He urged senior officials from Thai Ministry of Labor and the Japanese Embassy to strictly inspect Thai nationals traveling to Japan and to tighten screening procedures for visa applications in Thailand.(13)
Thailand has also engaged in substantial legislative reform in an effort to suppress child prostitution and trafficking in both children and women. In 1996, the Prevention and Suppression of Prostitution Act was revised to reduce the penalties on women engaged in prostitution(14) and to increase the penalties on all other persons involved in the prostitution business, especially in cases involving children (persons under eighteen). Though this law is targeted primarily at the domestic sex industry in Thailand, it also applies to cross-border recruitment for sex work. Section 9 prescribes penalties of one to ten years of imprisonment and a fine of 20,000 to 200,000 baht for "[a]ny person who procures, seduces or takes away(15) any person for the prostitution of such person, even with her or his consent and irrespective of whether the various acts which constitute an offence are committed within or outside of the Kingdom."(16) Section 12 could also be applied to international trafficking agents in cases in which women are detained while their travel arrangements are being made:
Any person who detains or confines another person, or by any other means, deprives such person of the liberty of person or causes bodily harm to or threatens in any manner whatsoever to commit violence against another person in order to compel such other person to engage in prostitution shall be liable to imprisonment for a term of ten to twenty years and to a fine of two hundred thousand to four hundred thousand baht.
In 1997, several amendments to the Penal Code were adopted with provisions similar to those in the Prevention and Suppression of Prostitution Act. Section 282 now provides penalties of one to ten years of imprisonment and a fine of 2,000 to 20,000 baht for anyone who, "for the sexual gratification of another person, procures, lures,(17) or traffics a man or woman for an indecent sexual act, even with his or her consent."(18) And section 283 raises the penalties to five to twenty years of imprisonment and a 10,000 to 40,000 baht fine for offenders employing "deceitful means, threats, physical assault, immoral influence, or mental coercion by any means."(19) The revisions also established penalties for the trafficking of children under the age of eighteen for non-sexual purposes.(20) The extraterritorial scope of sections 282 and 283 was established by adding them to the list of laws in section 7 of the Penal Code for which an offender may be tried in the Kingdom, even if the offenses were committed outside of the Kingdom. These changes were confirmed in the substantially revised Measures in Prevention and Suppression of Trafficking in Women and Children Act (hereinafter, Trafficking Act) that was adopted on the same day in 1997.
The Trafficking Act does not create additional criminal offences, except in establishing penalties for attempting to commit acts related to trafficking and for conspiring to commit such offenses.(21) Rather, it grants additional powers to law enforcement officials to facilitate their efforts to suppress crimes already prohibited by other legislation.(22) Section 5 of the Act describes the types of offences covered by this law:
In committing an offence concerning the trafficking in women and children, buying, selling, vending, bringing from or sending to, receiving, detaining or confining any woman or child, or arranging any woman or child to receive any act, for sexual gratification of the third person, for an indecent sexual purpose, or for gaining any illegal benefit for him/herself or another person, with or without the consent of the woman or girl, which is an offence under the Penal Code, the law on prostitution prevention and suppression, the law on child and youth welfare, or this Act, the official is authorized to enforce power under this Act.(23)
The actions officials are authorized to take in order to facilitate the prevention, investigation, and prosecution of such crimes include the following:
In addition to measures specifically targeted at trafficking offenses, new legislation was proposed in 1999 to overcome the obstacles involved in suppressing a variety of organized crime activities, including trafficking in persons. This legislation could make an important contribution to Thailand's efforts to investigate and prosecute traffickers. These laws include a money laundering bill, which was enacted in April 1999, and a witness protection law, proposed by the Justice Ministry in mid-1999.(24) The Anti-Money Laundering Bill allows officials to seize the proceeds from the following types of illegal activities: narcotics trafficking, prostitution, fraud against the public, fraud against banks and finance companies and violations of stock trading laws, abuses of authority by government officials, extortion, and contraband smuggling.(25) It can be used to target recruiters and traffickers who are involved in fraudulent job recruitment and recruitment (fraudulent or otherwise) for prostitution, as well as corrupt government officials who profit from these activities.(26) The proposed witness protection law was still in the drafting process a year later, in mid-2000, when this report was being prepared, so it could not be evaluated. However, effective measures to protect witnesses could address a crucial obstacle to the successful prosecution of trafficking agents and escorts, who are often connected to dangerous criminal networks. As a police colonel in northern Thailand explained, "Witnesses are afraid to testify and the best we can do is tell the local precinct to watch them for a limited period of time -- and even then not twenty-four hours a day -- and after that time period they're on their own."(27)Weak enforcement efforts
The usefulness in practice of the revised trafficking legislation could not be assessed at the time this report was prepared, because there had been little effort to enforce it. Human Rights Watch found that many law enforcement officials, in fact, were unaware that the new law existed. In April 1999, two years after the revised Trafficking Act had been enacted, a high-ranking police officer in one of the provinces in northern Thailand -- where trafficking in women and girls from neighboring countries into Thailand is a significant problem -- insisted to Human Rights Watch that no such law existed.(28) Activists involved in encouraging the investigation and prosecution of trafficking abuses in Thailand explained that they often found themselves instructing police about the content of the revised legislation.(29)
At the time this report was being prepared, government efforts were underway to address this problem. On June 30, 1999, the Thai government produced a document with detailed instructions regarding the implementation of trafficking legislation. The "Memorandum of Understanding on Common Guidelines of Practices for Agencies Concerned with Cases Where Women and Children are Victims of Human Trafficking" (hereinafter, Memorandum of Understanding) was drafted in cooperation with a number of nongovernmental and intergovernmental organizations and contains useful information for police officers that is sensitive to the needs and rights of trafficked persons. While much of the document is devoted to the problem of trafficking in women and children into Thailand, it also contains a number of provisions regarding the trafficking of Thai women and children out of the country. In these cases, the memorandum instructs officers to file criminal charges against persons suspected of committing trafficking offenses and to "immediately coordinate with a public prosecutor in order to file a petition for the court to take an early deposition of the testimony of the witness," as is allowed under the revised trafficking law. It explains that all victims under the age of eighteen should be referred to shelters -- not detention centers -- operated by the Department of Public Welfare and that vocational training programs should be arranged for victims over the age of eighteen "if the woman wants" to receive such assistance. The memorandum also directs police officers to inform the Department of Public Welfare or a nongovernmental organization of all trafficking cases so that a social worker, psychologist, psychiatrist, or other person "with experience in working with women or children" may be involved in the initial inquiry, investigation, and trial of the case.(30) Policies that incorporate gender discrimination and stereotypes violate women's rights and are ineffective in combating trafficking
In its efforts to combat trafficking, some of the policies that Thailand has adopted are overly-broad and infringe on women's rights to freedom from discrimination and freedom of movement. The most striking example is the extra scrutiny to which the passport applications of women and girls (only) are subjected. This constitutes discriminatory treatment as well as a violation of the right to freely leave and enter one's country, rights firmly established under international law.(31) In 1997, DPW recommended that more than one thousand women be denied passports out of the 2,300 names referred by MFA. The number of cases referred to DPW dropped dramatically to 575 in 1998, but still, hundreds of women were denied passports on the ground that they might enter the sex industry if they traveled abroad.(32) Thus, women were penalized for their vulnerability to abuse; they were denied the necessary documents to travel abroad based on the suspicion that they would become victims of sexual exploitation. Moreover, even those whose applications were eventually approved suffered intrusions into their privacy, as applicants and their family members were interrogated about financial and other personal details of their lives.
Similarly, the Trafficking Act appears aimed at suppressing all migration of women suspected to be seeking work in the sex industry, failing to differentiate between consensual and non-consensual migration. As noted above, it is too early to assess the impact of the revised law. However, Human Rights Watch is concerned that the protective approach toward both children and (adult) women travelers adopted in certain provisions of the Trafficking Act has the potential to infringe on these persons' right to privacy, to freedom of movement, and to freedom from arbitrary detention. In determining the appropriate treatment of suspected victims of trafficking, it is important to emphasize that such persons have not been charged with any criminal activity and that their treatment must be consistent with the intent of protection. Body searches should never be carried out without a person's consent on the basis of her/his status as a suspected victim of a crime. In addition, while briefly restricting a woman or child's freedom of movement for the purpose of factual clarification and document verification may be appropriate, any further deprivation of liberty must be consistent with the right to be free from arbitrary detention.
Placing a person in protective detention on the basis of her/his suspected status as a victim of trafficking is an extreme measure that must be subject to a high level of judicial oversight. Notifying -- or obtaining permission from -- the Director General of the Police Department or a provincial governor (as provided in Section 10 of the Trafficking Act) is not a sufficient protection against arbitrary detention, and the process provided for pursuing claims of "wrongful" detention under Section 13 of the Trafficking Act does not provide adequate assurance of a fair and prompt hearing.(33) Sections 10 and 13 should be revised to ensure that all persons detained as suspected trafficking victims have immediate access to a court that may decide the lawfulness of their detention and that all due process protections, including the right to legal counsel, are afforded. In addition, the Thai government should take concrete steps to ensure that persons who are placed in protective detention are not treated punitively. The Trafficking Act goes a long way to address this issue by providing that persons detained under Section 10 should be held in an "appropriate place, which shall not be a detention cell or prison." The Memorandum of Understanding (discussed above) goes further by defining "appropriate" places as a primary shelter, a DPW shelter, or a private shelter approved of by that department; by providing that all detained children be afforded medical examinations; and by instructing police to notify the DPW or an NGO about all trafficking cases. These protections should be strengthened to ensure that all persons detained as suspected trafficking victims have access to the medical, social, and other services they need, without delay. In addition, if a child is detained, all efforts should be made to locate the child's family members and facilitate the child's prompt reunification with his/her parents or guardians, unless the best interests of the child dictates otherwise.
The overly-broad scope of Thailand's anti-trafficking policies also undermines their effectiveness in combating trafficking in women. Women who voluntarily decide to migrate may later find themselves victims of trafficking, having been sold into servitude abroad. However, efforts to forcibly prevent women's travel are counterproductive. They alienate women migrants -- by encouraging women to take steps to evade or overcome the government's restrictions on their travel -- rather than empowering women to protect their rights during the course of their migration. And, while they may make traffickers' tasks more complicated, they simultaneously make the services of traffickers even more essential to women who want to migrate but cannot negotiate the legal obstacles themselves. At the Department of Public Welfare, an official acknowledged to Human Rights Watch that rejecting passport applications only leads women to employ deceptive tactics. "If a woman's application is rejected," the officer explained, "then she will change her surname and try again."(34)
The Thai government's awareness-raising campaigns have been criticized on similar grounds. They have provided valuable information about the dangers of migration, but they would be more effective in protecting women from abuse if they combined such warnings with information that helped women migrate safely. This could include information about laws and policies in countries of destination, as well as information about services and resources available to Thai women abroad. As one NGO representative put it, the effectiveness of warnings alone is limited as "women still want to go because they are so poor."(35)
The government's skill development programs for women could also be improved. Efforts should be made to overcome traditional preconceptions regarding women and women's roles and to change the focus on traditional "female" skills that prepare women only for very low-paying occupations.(36) As Naiyana Supapung, former director of Friends of Women in Asia (FOWIA),(37) explained:
The government says it provides vocational training, but this training prepares women for jobs with little income. Women don't want this. The government officials don't understand; they have a bad attitude and look down on the women who are prostitutes. They don't believe these women have the potential to study. We tried to contact the Ministry of Labor to get them to change their programs, and not just offer cooking and hair dressing, but also electronics and computers, subjects that can lead to good jobs. When I visited the vocational programs, only men were in those courses. Officials say it's the women's fault, that they don't choose electronics, but I think it's the officers' attitude about what is appropriate for women. It is not a written rule, but an orientation on the part of the advisor at these programs. And teachers are not supportive of having women in technical courses.(38)
Senator Saisuree Chutikul, one of the primary participants in drafting the government's National Plan of Action and the Memorandum of Understanding on trafficking, agreed that proactive efforts are needed to ensure that skill training programs are more responsive to markets. Currently, she said, "Girls will say, 'I want sewing,' because they don't know about anything else, and the Department of Public Welfare has sewing teachers, so arranging these classes is convenient for them."(39)
Hilltribe women's vulnerability to trafficking is exacerbated by discriminatory nationality policies that violate their right to a nationality, to education, and to freedom of residence and movement
Another critical problem is the discrimination faced by hilltribe populations in Thailand. There are approximately 800,000 to 900,000 hilltribe people living in the border region of northern Thailand. They suffer from disproportionate levels of poverty in relation to the general population of Thailand, and, while estimates vary, as many as seventy percent lack citizenship cards. As non-citizens, these hilltribe people face a variety of discriminatory policies. They do not have access to government-subsidized health care. Although they may attend primary school at local officials' discretion, they are not allowed to receive primary school diplomas, thereby preventing them from attending higher education and limiting their employment opportunities. And their freedom of movement is sharply limited. In an effort to regularize the status of hilltribe populations, local authorities in some provinces have issued identity cards and short term visas. But these papers are issued on an ad hoc basis, and, while they accord limited rights of residency and employment, they typically prohibit travel outside of one's home province without permission.(40) There have also been central government programs to register hilltribe people, but they have been overwhelmed by the volume of applications and little progress has been made. In January 2000, Thailand's Registration Administration Bureau announced that a new plan was underway. A mobile unit was going to be launched in cooperation with the United Nations International Children's Emergency Fund (UNICEF) to issue identification cards to members of hilltribe groups and displaced people along Thailand's border. At the time this report was prepared, it was too early to assess the effectiveness of this effort.(41)
The discrimination that hilltribe women and girls face in access to educational and employment opportunities in Thailand exacerbates their vulnerability to trafficking by increasing their incentive to seek work abroad. Moreover, those without citizenship papers cannot travel overseas through legal channels. These factors combine to make the offers of recruiters and trafficking agents -- who promise to arrange lucrative employment as well as safe passage -- more appealing.
The policies that make these women and girls more vulnerable to the human rights violations of trafficking and forced labor also violate a number of other human rights, including the right to freedom of movement and residence(42) and the right to education.(43) In addition, by perpetuating the problem of statelessness, Thailand's hilltribe policies stand in blatant disregard of the persistent appeals by the international community -- through conferences, conventions, declarations, and resolutions -- that states work to reduce statelessness and devote efforts to guarantee individuals' fundamental right to citizenship.(44) These goals have been echoed by the Executive Committee of UNHCR (EXCOM),(45) of which Thailand is a member. In 1995, EXCOM issued the "Conclusion on the Prevention and Reduction of Statelessness and the Protection of Stateless Persons," in which it "calls upon States to adopt nationality legislation with a view to reducing statelessness, consistent with fundamental principles of international law."(46)
Nongovernmental organizations in Thailand have provided some assistance to hilltribe communities. The Thai government has called on such organizations to participate in its educational programs; in launching the "Education and training programme for teachers, parents and young girls at risk"(47) in 1995, for example, Pimpa Chanprasong, Minister to the Prime Minister's Office, noted, "The government alone cannot solve these problems."(48) The nongovernmental partner in that program was DEP, the Daughters' Education Program of the Development and Education Programme for Daughters and Communities Centre, which runs schools and vocational programs in Chiang Rai province. DEP's primary objective since its initiation in 1989 has been to prevent girls from being forced into the sex industry. Its programs target "girls likely to enter the commercial sex industry," and DEP has paid particular attention to providing educational and employment opportunities to hilltribe girls. The Director, Sompop Jantraka, has noted that hilltribe persons without identification papers are particularly vulnerable to "unscrupulous employers" in the sex industry because of the difficulties they face in obtaining legal employment.(49)Services for Victims
In addition to its efforts to prevent and suppress trafficking, the Thai government provides assistance for trafficking victims. Thai officials facilitate women's safe repatriation to Thailand, and temporary shelter and skills training are provided to those who want it. But while these services are important, they are not designed to adequately address the economic burdens that motivated the women to go to Japan in the first place. Training programs typically prepare women only for low-paying jobs, and no steps are taken to assist trafficking victims in seeking compensation or redress for violations suffered in Japan. Moreover, hilltribe and refugee women who have been trafficked from Thailand are denied permission to reenter Thailand on the grounds that they are non-nationals, leaving them stranded in Japan, separated from their homes and families.Assistance in repatriation
In Japan, officials at the Royal Thai Embassy bear the primary responsibility for responding to the needs of Thai nationals, in cooperation with the Division of Consular Affairs of the Thai Ministry of Foreign Affairs in Bangkok. Embassy services are not provided specifically for victims of trafficking, but embassy records indicate that most of the women who seek its help migrated to Japan through what it terms "the trafficking process": their travel and employment was facilitated by networks of agents, escorts, and brokers, and they worked as indebted sex workers for at least one year after they arrived in Japan.(50) With the help of Thai officials -- who issue CI papers and help women raise funds to cover their travel(51) -- Thai women are often able to return home within a few weeks. In some cases, Embassy officials have even gone to considerable lengths to help women escape from debt bondage in snack bars or brothels, and they often work closely with Japanese NGOs, referring women to private women's shelters when they need a place to stay while they await repatriation.(52) In recognition of the work such groups do to assist Thai women, the Thai government donated US$400,000 to Japanese NGOs in 1994,(53) and in 1998, the Thai Labor Office in Tokyo, along with the Tokyo Metropolitan Government, the Japanese Ministry of Labor, and the Social Welfare Office, assisted the HELP Asian Women's Shelter in publishing a Thai language handbook on Japanese laws.(54)Shelter and vocational training in Thailand
Women returning from Japan also have access to shelters and vocational training programs in Thailand, either through the services established under the Prevention and Suppression of Prostitution Law or through the Department of Public Welfare's more general services for women. Under the prostitution law, four reception homes and four welfare protection and vocational development centers have been established to provide institutional care to women found guilty of prostitution-related offenses. Until 1996, all women convicted under this law could be remanded to such institutions for up to one year. Under the revised law, these services are optional for women over the age of eighteen, but girls under eighteen may be forcibly placed in a protection and vocational development center for up to two years.(55) There are also women's shelters operated by Thai NGOs, such as the Women's Desk of the Catholic Commission on Migration, that have been used by women returning from trafficking and forced labor abuses in Japan, and there are a variety of skill development programs provided by the Department of Public Welfare and other government agencies, which can serve both preventative and rehabilitative functions.Violations of the right to return to one's own country
The services that the Thai government provides to trafficking victims suffer from some of the same prejudices as the efforts to prevent and punish trafficking described above. A devastating result of the government's discriminatory nationality policies, for example, is its refusal to permit the repatriation of women who had not obtained official Thai citizenship at the time they left the country. This policy constitutes a violation of the women's right to return to their "own country,"(56) and typically results in indefinite separation from their family members as well, in contravention of Thailand's international legal obligation to protect the family unit.(57) When persons with refugee status in Thailand are trafficked to Japan they face similar problems. Thailand is not a signatory to the Convention relating to the Status of Refugees or the Protocol Relating to the Status of Refugees, but it has granted more than 100,000 refugees a limited right to reside in Thailand, as long as they remain within the confines of designated refugee camps. Refugees also pass their status on to their children, so there are now thousands of second and third generation refugees who were born and raised in Thai territory, but have no right to return to the country once they have left.(58)
While denying persons the right to return to their own country is always unacceptable, it is particularly egregious in the case of trafficking victims, whose initial decision to leave Thailand was made under deceptive or otherwise coercive conditions. In April 1999, Human Rights Watch spoke to the First Secretary at the Thai Embassy about this continuing issue, and, while he expressed sympathy for the women's situation, he explained insisted that there was nothing his office could do: "We have to follow the Ministry of the Interior's immigration law," he explained.(59)Biases undermine usefulness of skills training programs
For women who are able to return to Thailand, the programs designed to facilitate their rehabilitation and reintegration into Thai society are undermined by the same gender stereotypes that affect other government training programs for women. At the centers established under the Prevention and Suppression of Prostitution Act, these stereotypes are compounded by biases against the "former prostitutes" participating in the programs. Not only do women learn skills that prepare them only for low-income work, "the status of these schools is low because people know that these schools are for 'bad women.'"(60) Naiyana Supapong suggested that "[t]he government shouldn't have separate schools for former prostitutes -- they should mix them in with the other vocational schools."(61)No effort to assist women in seeking compensation for violations
Finally, the policies and practices of the Thai government consistently reveal the perception that while women who have engaged in sex work abroad are in need of certain types of assistance, protection, and rehabilitation, they are not in need of assistance as migrant workers. Thus, the services that the Thai Embassy and other Thai government officials provide for women victims of trafficking and other abuses abroad do not include legal assistance in fighting for unpaid wages or financial compensation or in understanding or challenging deportation proceedings. Thai Embassy First Secretary Nopporn Ratchawej said that this is largely because women do not ask for such assistance, adding that because most of the women have been in Japan for several years they can communicate with immigration officials themselves and do not need help with interpretation or translation. Typically, he said, the Embassy is not contacted by immigration officials or detainees until after deportation orders have been issued, and then the Embassy will try to facilitate the detainees' return. Nopporn found that women's priority is quick repatriation; "the women want to return home quickly, so they don't want to press charges. . . . Men sometimes ask for unpaid wages, but women do not."(62) Our interviews with advocates and women confirm that many women are reluctant to testify about their experiences for fear that this will delay their return home and, for those who have been arrested, prolong their period of detention. However, we also found that Thai officials, like Japanese government officials, show little interest in pushing for justice or financial compensation for the labor abuses and other violations women have suffered in Japan.
This disinterest stems from the fact that the great majority of migrant Thai women in Japan are employed in the sex industry. While most of the labor the women perform as hostesses is legal -- and thus in theory subject to minimum wage protections and other labor law guarantees -- Thai officials do not consider the women's activities "work." The government's bias against these women is perhaps best illustrated by the absolute disinterest evinced by the Thai Labor Attache in Japan. When Human Rights Watch spoke to the Minister-Counsellor of the Thai Office of Labor Affairs in Tokyo, Pranee Sukkar, and requested a meeting to discuss services provided for migrant Thai women working in Japan, her response was, "If you are interested in women, you should speak to the First Secretary at the Thai Embassy. We don't work with women."(63) We followed up on this statement in a telephone interview with an official in the Division of Foreign Affairs Coordination at the Thai Ministry of Labor and Social Welfare in Bangkok. She gave the following description of the Labor Attache's responsibilities in Japan:
The Labor Attache at the Labor Office in Japan is responsible to protect the Thai people. But her responsibilities are different from those of the Thai Embassy -- she is only responsible for labor issues. The Labor Office helps both legal and illegal laborers, asking for the rights they should have in Japan. For example, if an employer doesn't pay the correct wage, the employee can go to the Labor Attache, who will help him collect the proper wages.(64)
She went on to explain that "[the Labor Attache] has a separate responsibility from the Embassy Officer who cares for the illegal Thai women, whether they are workers or not. So that is why she says 'we don't help women.' Usually, women go to Japan through agents with deception. The woman thinks she's going for work, but then it's really not the case." As the conversation continued, the official admitted that Thai women in Japan might, in fact, be working, but insisted that Thai government "classifies this work differently. . . . It's unusual work so it's not covered by the Labor Attache. Many other Thai government offices care for these women, such as the Department of Public Welfare."(65) But while the Department of Public Welfare does provide certain services to Thai women returning from abusive conditions in Japan, it does not provide any assistance to women in collecting unpaid wages or other compensation for the labor violations and other abuses suffered in Japan.
1. National Committee for the Eradication of Commercial Sex, National Commission on Women's Affairs, Office of the Prime Minister, Thailand, "National Policy and Plan of Action for the Prevention and Eradication of the Commercial Sexual Exploitation of Children," 1996.
2. Sanitsuda Ekachai, "Conference seeks help for Thai victims: These women are not criminals-envoy," Bangkok Post, September 28, 1999; "Govt, NGO officials meet on Thai women's problems," The Daily Yomiuri, September 28, 1999.
3. They are also referred to as "tribal people."
4. "Educational-reform panel must stick to its guns to succeed," The Nation (Bangkok), January 12, 2000.
5. Human Rights Watch interview with Suwaree Jaiharn, Occupational Assistance Division, Department of Public Welfare, Ministry of Labour and Social Welfare, at the Department of Public Welfare office, Bangkok, Thailand, April 28, 1999.
6. Napat Sirisambhand, Social Security for Women in the Informal Sector in Thailand, January 1996, p. 9.
7. For example, see "IN BRIEF: Thais warned against lure of foreign land," The Nation (Bangkok), March 10, 1999.
8. Human Rights Watch interview, with Chitraporn Vanaspong, Information Officer, ECPAT International, Bangkok, Thailand, April 22, 1999.
9. "Thai Government Warning to Thai Women Going to Japan," Yomiuri Shimbun, May 10, 1994 (translated from Japanese).
10. The Department of Public Welfare, Ministry of Labour and Social Welfare, "Welcome to The Department of Public Welfare, Ministry of Labour and Social Welfare," Thailand, 1998, p. 9.
11. Human Rights Watch interview with Suwaree Jaiharn, Occupational Assistance Division, Department of Public Welfare, Ministry of Labour and Social Welfare, Bangkok, Thailand, April 28, 1999.
12. "Japan-bound Thais 'need more scrutiny,'" The Nation (Bangkok, Thailand), January 7, 1995.
In October 1999, fifteen Thai nationals submitted a petition to the Don Muang airport immigration chief, complaining that they were subjected to abusive and insulting questioning from immigration officials who suspected them of seeking jobs overseas. They were part of a group of thirty-five nongovernmental organization representatives flying to Malaysia to take part in an international AIDS meeting. The fifteen were first-time air travelers, and they were detained by officers asking them questions such as: "Where are you going? People with your looks don't seem to be the ones who will be attending a meeting." Police Lieutenant-General Chidchai Wanasathit, the immigration police commissioner, explained that it was the policy for immigration officers to be strict with first-time travelers, though not abusive or insulting. ("AIDS activists protest over airport abuse: Officials accused of insulting behavior," Bangkok Post, October 28, 1999.)
13. 13 See "Japan-bound Thais 'need more scrutiny,'" The Nation (Bangkok, Thailand), January 7, 1995; and "Minister seeks to curb illegal labour," Bangkok Post, January 8, 1995.
14. Section 4 of the Act defines "prostitution" as "the acceptance of sexual intercourse, or the acceptance of any other act, or the commission of any other act in order to gratify the sexual desire of another person in a promiscuous manner in return for earning or any other benefit, irrespective of whether the person who accepts the act and the person who commits the act are of the same sex or not."
15. Note that other government publications translate "takes away" as "traffics."
16. If this offense is committed against a child, penalties can be as high as twenty years.
Here and below, excerpts from the Prevention and Suppression of Prostitution Act were taken from the English translation of the law provided in Save the Children Fund (U.K.)'s "Thailand's National Policy, Plan of Action and Legal Measures in the Elimination of Sexual Abuse and Exploitation of Children." The translation was completed by Wanchai Roujanavong, Deputy Executive Director, International Affairs Department, Office of the Attorney General, Chairperson of FACE.
17. "Lures" is also translated as "deceives."
18. Here and below, excerpts from the Penal Code were taken from the English translation of the amendments provided in Save the Children Fund (U.K.)'s "Thailand's National Policy, Plan of Action and Legal Measures in the Elimination of Sexual Abuse and Exploitation of Children." The translation was completed by Wanchai Roujanavong, Deputy Executive Director, International Affairs Department, Office of the Attorney General, Chairperson of FACE.
19. In both provisions, there are higher penalties for committing these offenses against persons under eighteen years of age.
20. Section 312: "Whoever, for gaining illegal benefit, receives, sells, procures, lures, or traffics a person over fifteen years but not yet over eighteen years of age, even with the consent of that person, shall be punished with imprisonment not exceeding five years, or a fine not exceeding ten thousand baht, or both. If the commission of the offence in the first paragraph is committed against a person not yet over fifteen years of age, the offender shall be punished with imprisonment not exceeding seven years, or a fine not exceeding fourteen thousand baht, or both."
21. Section 6 provides that attempting to commit any of the offenses specified in Section 5 is subject to the same penalties as committing the offense. Section 7 prescribes a maximum sentence of five years of imprisonment and a 10,000 baht fine for conspiring to commit any of the offenses specified in Section 5.
22. The Trafficking Act is designed to: "provide measures to authorized officials to undertake proceedings . . . whenever offences have been committed relating to the traffic of women and children constituting offences according to the Criminal [or Penal] Code, the law on the prevention and suppression of prostitution, or the law on child and youth welfare, to more widely facilitate the prevention, suppression and assistance to women and children victimized by such offences." National Committee for the Eradication of Commercial Sex, National Commission on Women's Affairs, Office of the Prime Minister, Thailand, "National Policy and Plan of Action for the Prevention and Eradication of the Commercial Sexual Exploitation of Children," 1996, p. 33.
23. Here and below, excerpts from the Trafficking Act were taken from the English translation of the law provided in Save the Children Fund (U.K.)'s "Thailand's National Policy, Plan of Action and Legal Measures in the Elimination of Sexual Abuse and Exploitation of Children." The translation was completed by Wanchai Roujanavong, Deputy Executive Director, International Affairs Department, Office of the Attorney General, Chairperson of FACE, and Pen Suwannarat, Program Coordinator, Mekong Region Law Center.
24. "Cream of bureaucrats eyed for anti-laundering office," The Nation (Bangkok, Thailand), May 17, 1999; "Witnesses need protection, say academics," The Nation (Bangkok, Thailand,), August 9, 1999; "Witness protection law being drafted," The Nation (Bangkok, Thailand), July 8, 1999.
25. "Bill receives Senate's nod," The Nation (Bangkok, Thailand), March 20, 1999.
26. The bill could have negative effects as well. While it was under consideration in early 1999, many people, including a senior politician and several human rights activists, expressed concern that several of its provisions, such as those allowing the appointed enforcement panel to tap telephone wires and seize assets of crime suspects, constitute infringements of individual rights. ("Crime assets bill 'close to approval,'" The Nation, January 21, 1999).
27. Human Rights Watch interview with a Police Colonel, northern Thailand, April 26, 1999.
28. Human Rights Watch interview with a Police Colonel, northern Thailand, April 26, 1999.
29. Human Rights Watch interview with Sudarat Sereewat, Secretary General of FACE, Bangkok, Thailand, April 22, 1999; Human Rights Watch interview with Wanchai Roujanavong, Chairman of FACE: coalition to Fight Against Child Exploitation and Senior Expert State Attorney, Bangkok, Thailand, April 22, 1999.
30. Office of the National Commission on Women's Affairs, Office of the Permanent Secretary, Office of the Prime Minister, Thailand, "Memorandum of Understanding on Common Guidelines of Practices for Agencies Concerned with Cases where Women and Children are Victims of Human Trafficking, B.E. 2542 (1999)." The memorandum was translated into English by Wanchai Roujanawong, Senior Expert State Attorney, International Affairs Department, Office of the Attorney General, Chairman of FACE (the Coalition to Fight Against Child Exploitation), with the support of IOM through Senator Saisuree Chutikul.
31. ICCPR, Article 12:
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.
32. Human Rights Watch interview with Suwaree Jaiharn, Occupational Assistance Division, Department of Public Welfare, Ministry of Labour and Social Welfare, Bangkok, Thailand, April 28, 1999.
33. Section 13 allows "the victimized woman or child, spouse, relative, or person with related interests to the woman or child" to challenge instances of "wrongful" detention under section 10, but there is no indication of what would be considered "wrongful" or what the remedy would be in those instances. Furthermore, such challenges are not heard by a judge -- they are decided by the Director General of the Police Department in Bangkok or by the provincial governor in other provinces, and if that authority finds the detention lawful, the case is referred to the Minister of Interior for final judgement
34. Human Rights Watch interview with Suwaree Jaiharn, Occupational Assistance Division, Department of Public Welfare, Ministry of Labour and Social Welfare, Bangkok, Thailand, April 28, 1999.
35. Human Rights Watch interview with Chitraporn Vanaspong, Information Officer, ECPAT International, Bangkok, Thailand, April 22, 1999. See also Human Rights Watch interview with Naiyana Supapung, Bangkok, Thailand, April 28, 1999.
36. In Social Security for Women in the Informal Sector in Thailand (January 1996, p. 14), Napat Sirisambhand notes that while a woman might be able to support herself on the income from such skills, women often have families (particularly parents) to support and thus need higher income occupations.
37. This was a Bangkok-based NGO that assisted women both in preparing for migration overseas and in returning to Thai society.
38. Human Rights Watch interview with Naiyana Supapung, former Director of FOWIA, Bangkok, Thailand, April 28, 1999.
39. Human Rights Watch interview with Saisuree Chutikul, Senator, Chairperson, Senate Committee on Women, Youth and the Elderly, and Advisor, Office of the Permanent Secretary, Office of the Prime Minister, Bangkok, Thailand, April 30, 1999.
40. See "Citizenship is gift sought on Children's Day," The Nation (Bangkok, Thailand), January 9, 2000. Malee Traisawasdichai, "Hilltribe take woes to Denmark," The Nation (Bangkok, Thailand), July 12, 1999; "Battling Pride & Prejudice," The Nation (Bangkok, Thailand), July 14, 1999; pamphlets and newsletters published by the Daughters' Education Program of the Development and Education Programme for Daughters and Communities Centre. There are also a large number of Burmese who reside in Thailand after fleeing from Burma, but have not been granted any refugee or residency status. They are in a particularly precarious position, and face the same vulnerabilities described with regard to hilltribe populations below.
41. "ID Cards for hilltribes," The Nation (Bangkok, Thailand), January 4, 2000.
42. ICCPR, Article 12(1).
43. The right to free, compulsory education, as well as access to higher education on the basis of capacity, is guaranteed under the Convention on the Rights of the Child (Article 28(1)). According to Article 2(1), "States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status."
44. The 1961 Convention on the Reduction of Statelessness, for example, aims "to provide for the acquisition and retention of nationality by those who would otherwise be stateless and who have an established link with the State concerned through factors of birth or descent." (UNHCR Training Program 1996, "Training Package: Statelessness and Related Nationality Issues," p. 25.) See also the 1948 Universal Declaration of Human Rights, Article 15; the Declaration on the Right to Leave and the Right to Return adopted by the Uppsala Colloquium in 1972; General Assembly Resolution 50/152, 9 February 1996, paragraph 16; the 1961 International Covenant on Civil and Political Rights, Article 24; and the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, Article 5(d)iii. In addition, the Convention on the Rights of the Child (Article 7) guarantees children the right to acquire a nationality. It does not specify which state has the obligation to grant a child nationality, but it instructs states to ensure the implementation of this right "in particular where the child would otherwise be stateless." Thailand acceded to this treaty on March 27, 1992, but it submitted a reservation regarding Article 7, stating that its application "shall be subject to the national laws, regulations and prevailing practices in Thailand."
45. EXCOM was created under General Assembly Resolution 1166 (XII) of November 1957. Its first session was held early in 1959. EXCOM tasks include advising the High Commission for Refugees in his/her work and approving the High Commissioner's assistance programs.
46. Conclusion No. 78 (XLVI).
47. "At risk," refers specifically to girls "at risk of entering the commercial sex trade."
48. "Government and NGOs cooperate to help young women," DEP Newsletter, March 1995, p. 1.
49. "Project covers province," DEP Newsletter, March 1995, p. 2.
50. Consular Section, Royal Thai Embassy, Tokyo, "Information Concerning Thai Commercial Sex Workers Including Statistics on Thai Women Arrested for Prostitution in Japan," October 21, 1998.
51. See "Deportation as 'illegal aliens'" chapter for a discussion of how these policies are implemented. It is worth repeating that government loans for travel expenses are only granted once all other avenues for raising money from friends and relatives have been exhausted, and women may not leave Thailand again until the money has been repaid.
52. Human Rights interview with First Secretary Nopporn Ratchewej, Royal Thai Embassy, Tokyo, Japan, April 15, 1999. The Thai Embassy will also register children born in Japan as Thai citizens, so that women do not have to go through an arduous process of establishing their children's nationality after returning to Thailand.
53. "Support for Japanese NGOs from the Thai Government," Asahi Shimbun, May 12, 1994 (translated from Japanese).
54. Human Rights Watch interview with Rutsuko Shoji, Director, HELP Asian Women's Shelter, Tokyo, Japan, April 8, 1999.
55. Sections 33-37. Section 38 allows shelters and protection and vocational development centers to request police assistance in pursuing persons who have escaped from such facilities.
56. One's "own country" under Article 12 of ICCPR is not equivalent to one's country of citizenship. As the Human Rights Committee explained in its General Comment on Article 12, "The scope of 'his own country' is broader than the concept 'country of his nationality.' It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered a mere alien." (Human Rights Committee, "General Comment No. 27," General Comments under Article 12 of the International Covenant on Civil and Political Rights (Freedom of Movement), sixty-seventh session, 1999.)
57. ICCPR, Article 23(1).
58. EXCOM has issued a number of other conclusions related to long-term refugee situations, exhorting states to find durable solutions to refugee situations, to facilitate refugee's ability to travel internationally, and to promote family reunification. See conclusions no. 69 (1992), no. 49 (1987), and no. 24 (1981), among others. In conclusion no. 69, EXCOM specifically addresses the situation of long-term refugees, and recommends that States not only consider an appropriate status for persons who refuse to repatriate due to fear of persecution, but also that "appropriate arrangements, which would not put into jeopardy their established situation, be similarly considered by relevant authorities for those persons who cannot be expected to leave the country of asylum, due to a long stay in that country resulting in strong family, social and economic links there" (Conclusion No. 69 (XLIII), "Cessation of Status," 1992, paragraph (e)). This statement applies directly to those persons classified as "refugees" in Thailand, but who were born in the country, inheriting their "refugee" status from their parents, or even their parents' parents.
59. Human Rights Watch interview, Tokyo, Japan, April 15, 1999.
60. Human Rights Watch interview with Naiyana Supapung, former Director of FOWIA, Bangkok, Thailand, April 28, 1999.
62. Human Rights Watch interview, Tokyo, Japan, April 15, 1999.
63. Human Rights Watch telephone conversation with Pranee Sukkar, Minister-Counsellor, Office of Labor Affairs, Tokyo, Japan, April 7, 1999.
64. Human Rights Watch telephone interview, Jintana, Division of Foreign Affairs Coordination, Ministry of Labor and Social Welfare, Bangkok, Thailand, April 29, 1999.