60 SADC/CM/2/2008/8.2. See Article 1(2).
61 See Article 20(5).
62 See UNODC, Global Report on Trafficking in Persons 2014, op. cit. (n.5), p. 85, Fig.65 –“Historical evolution of the legislation in Sub Saharan Africa, 2003–2014”.
63 Ibid., p. 84.
64 Also, the following ECOWAS countries – Burkina Faso, Ghana, Guinea, Nigeria, Senegal and Sierra Leone – have official policies regulating the protection of people identified as victims of trafficking.
65 Data obtained directly from ECOWAS’s anti-trafficking unit, Abuja, December, 2015.
66 See the Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, Joy Ngozi Ezeilo, Mission to Seychelles (General Assembly Doc. A/HRC/26/37/Add.7, of 5 June, 2014), at p. 7.
67 These are: Niger, Nigeria, Senegal, Togo, Cape Verde and Liberia.
68 Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015. See Federal Republic of Nigeria Official Gazette No. 32, Lagos, 30 March, 2015, vol. 102, published by the Federal Government Printer, Lagos, Nigeria.
69 Ibid. See the Explanatory Note.
70 See s.2.
71 NAPTIP was first established in 2003 by the now repealed Act No. 24th July, 2003, as amended in 2005.
72 See www.naptip.gov.ng.
73 Nigeria, Ghana, Cameroon and Benin are clear examples.
74 That does not mean that people from other ethnic or religious backgrounds are not victims. In fact, another trend shows that Muslims are likely to be trafficked to Saudi Arabia or other Middle East and Gulf countries, where they may go underground, never to be found or identified as trafficked victims.
75 See NAPTIP, 2013/14 Annual Report, at p. 16.
76 See Sector Project Against Trafficking in Women (eds.), Challenging Trafficking in Persons, Theoretical Debate & Practical Approaches (GTZ (Federal Ministry for Economic Cooperation and Development) and Nomos, 2005), pp. 161–169, in particular at p. 163.
77 See the following reports to the United Nations Human Rights Council: Egypt: A/HRC/14/32/Add.5 and A/HRC/17/35/Add.2; Gabon: A/HRC/23/48/Add.2; Morocco: A/HRC/26/37/Add.3; and Seychelles: A/HRC/26/37/Add.7.
78 The first target of MDG 1 consisted of “[halving], between 1990 and 2015, the proportion of people whose income is less than $1.25 a day”.
79 MDG 2 was aimed towards achieving universal primary education.
80 MDG 3 was devoted to promoting gender equality, and to empowering women; and its corresponding and unique target was to “[e]liminate gender disparity … in all levels of education no later than 2015”. One of the indicators for measuring progress was the “proportion of seats” occupied by women in parliaments.
81 See: www.un.org/sustainabledevelopment. The UN’s declaration of 17 Sustainable Development Goals (SDGs) and 169 targets was adopted as the new universal Agenda 2030 by the Heads of State and Government and High Representatives, meeting at the United Nations Headquarters in New York from 25–27 September 2015. The SDGs seek to build on the Millennium Development Goals and complete what they did not achieve.
82 See Guideline 1, Recommended Principles on Human Rights and Human Trafficking –2002, OHCHR.
83 See Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, Joy Ngozi Ezeilo (Human Rights Council Doc. A/HRC/17/35, of 13 April, 2011), discussing the right to an effective remedy for trafficked persons.
84 See United Nations, First Decade of the Mandate of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, 2014 –op. cit. (n.13), at p. 10.
85 Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, Joy Ngozi Ezeilo (Human Rights Council Doc. A/HRC/17/35, of 13th April, 2011) –Chapter III: “Thematic Analysis: The Right to an Effective Remedy for Trafficked Persons”.
86 Ibid. See Annex I, pp. 20–22.
87 Ibid. See Principle 2(b), paragraph 8(a) on recovery.
88 This would be contrary to the principle of non-refoulement.
6
Human trafficking in the context of labour migration in Southeast Asia
The case of Thailand’s fishing industry
Sebastian Boll
Introduction: human trafficking in Southeast Asia
Human trafficking constitutes one of the gravest forms of human rights abuses, whereby people are exposed to, and maintained in, conditions of severe exploitation, by means of deception, coercion, or force. It is a worldwide phenomenon, with few – if any – countries unaffected. Attempts to quantify and qualify human trafficking at the global level are complicated by its clandestine nature, definitional ambiguities, interpretational differences, or time and resource constraints. Amongst the reports published, the International Labour Organization’s (ILO) Global Estimate of Forced Labour is arguably one of the most comprehensive and systematic efforts.
Whilst the relationship between human trafficking and forced labour continues to be debated,1 there is recognition that the two concepts feature significant overlaps – with the ILO’s Global Estimate often being referenced as a proxy for the former. The ILO’s 2012 report estimates that 20.9 million people were in conditions of forced labour at any point in time during the reference period of 2002–2011. Amongst these, 11.7 million, or 56% of the total, were identified in the Asia-Pacific, making it by far the most affected region in the world in terms of absolute numbers.2
Within the Asia-Pacific, Southeast Asia features some of the most diverse and extensive patterns of human trafficking, which mainly occur in the context of large-scale, often intra-regional labour migration, whereby people from economically less prosperous countries move to those with higher wage levels and a demand for labour. It is indicative that three of the most advanced economies in Southeast Asia,3 namely Malaysia, Singapore, and Thailand, host more than 90% of the 6.8 million registered intra-regional migrants.4
In all three countries, migrants primarily work in similar, low-skill sector jobs, including in agriculture, construction, manufacturing, domestic work, maritime industries, or commercial sex.5 They are also vulnerable to abuse and exploitation for some of the same reasons, including: complex networks of employers, employment agents, and labour recruiters; complicated, expensive, and restrictive labour migration mechanisms; legal and regulatory frameworks that weaken the status of workers – particularly that of migrant workers – in certain industries; as well as insufficient law enforcement.6
This chapter discusses these factors with respect to human trafficking in the Thai fishing industry. The objective is to move beyond a simplistic focus on individual exploiters and instead embed the phenomenon in the structural factors underpinning the exploitation of workers, in Thai fishing and beyond.
In focus: human trafficking in the Thai fishing sector
Industrialisation in the Thai fishing industry, and its environmental impact
Fishing in Thailand, until the late 1800s, was primarily targeted at satisfying local demand and was typically performed in near-shore areas with abundant marine resources. This began to change at the turn of the century, and particularly following the Second World War, when the fishing sector experienced rapid industrialisation, including an increasing focus on exports.7 The growth was so staggering that, between 1999 and 2001, Thailand temporarily became the world’s leading exporter of edible fisheries products.8
The expansion of the sector, however, occurred without the simultaneous development and enforcement of an adequate regulatory framework. The result was widespread illegal, unreported, and unregulated (IUU9) fishing, leading to a dramatic depletion of fish stocks, severe destruction of the broader maritime biosphere, and negative economic repercussions for the fishing industry. The catch per unit effort (CPUE) index – an important indicator of stock abundance, as well as of economic efficiency – plummeted by 97% between 1961 and 2006 in the Gulf of Thailand, with a similar development in the Thai Andaman Sea.10
With fewe
r and fewer fish to catch, the country’s growing fishing fleet11 began to look elsewhere for marine resources – initially in Indonesia, Malaysia, Myanmar, and Vietnam. By the 1980s, about a third of all fish landings in Thailand originated from outside Thai waters.12 However, Thailand’s efforts to explore new fishing areas were increasingly restricted by governments in the region, who were attempting to control their fish stocks and to develop their own fishing industry.13 This pushed Thai vessels to move west to Madagascar, South Africa, the Horn of Africa; or northwards into Russian waters.
Along with an expansion of the territorial reach, the fishing sector also responded to such pressures by increasing its aquaculture production, as well as by relying more heavily on so-called trash fish as an alternative revenue source. Trash fish is made of by-catch, and processed to a mush for livestock feed, pet food, or fish oil.14 The environmental implications are severe: about 35% of all trash fish in the Gulf of Thailand comes from juveniles of commercially important species,15 thereby further contributing to the decline in fish stocks.
Today, the fishing industry remains a key pillar of the Thai economy, employing some 300,000 people, approximately 90% of whom are migrant workers.16 Much of the produce is exported to overseas markets, including the US and the EU.17 However, the above factors combined have made Thai waters some of the most overfished in the world,18 and returns on investment continue to be in decline.19
Legal and policy framework on recruitment and working conditions in the fishing industry
The 1990s saw Thailand emerge from a net-sending to a net-receiving country for labour migration. Rapid economic growth led to an increase in the demand for workers in low-skill jobs, which were becoming increasingly undesirable to many Thais. The Government initially responded by granting irregular migrants in the country temporary stay and employment opportunities, without full legal status or labour protections.20
In early 2000, Thailand signed a series of bilateral Memoranda of Understanding (MoUs) for co-operation on labour migration with neighbouring Cambodia, Laos, and Myanmar. However, the recruitment procedures have proved to be bureaucratic, time-consuming, and expensive. Besides, source countries introduced restrictions for the placement of their citizens in certain sectors, including domestic work and fisheries, partly out of fear of exploitative work conditions.21 As a result, only about 300,000 out of all migrants working in Thailand had come through the MoU process by February 2016.22
Through the MoUs, the countries also agreed to bring irregular migrants within the scope of the arrangements, which paved the way for a process called Nationality Verification (NV) in Thailand.23 As part of the NV, irregular migrants obtain identifying documents issued by their country of origin before receiving the required visa and work permit.24 In 2014, the regularisation process was further facilitated through the establishment of so-called One Stop Service Centres (OSSCs) in several provinces, where migrant workers can collect identification cards permitting them to stay and work temporarily whilst the NV is being completed.25 Some 1.6 million migrants had registered with the OSSCs by November 2014.26
With regular mechanisms either unavailable or unattractive, labour migration from neighbouring countries into the Thai fishery sector continues to occur primarily through irregular channels, often involving brokers in the origin country who co-ordinate with other agents or employers across the border.27 Various sides, including the private sector, have called for the Government to regulate the many brokers operating in Thailand. The country’s Recruitment and Job-Seekers Protection Act, B.E. 2528 (1985), stems from a time before Thailand began experiencing large-scale in-migration, and focuses on Thai citizens moving abroad for work. As a consequence, the Act does not deal with brokers or sub-contracting agencies focusing on inbound migrant workers, nor with any protective mechanisms available to the latter.28
The Government, however, has opted for an attempt to squeeze the irregular brokers operating in the Thai fishing industry out of business by setting up so-called Labour Coordination Centres (LCCs) in coastal provinces. Whilst these are tasked with overseeing the recruitment practices and employment conditions in the marine fisheries sector, their role is undermined by a lack of human and financial resources, as well as by the private sector’s voluntary participation in the LCCs’ recruitment management.29
Upon recruitment, employment conditions are governed by the Labour Protection Act (LPA), B.E. 2541 (1998);30 however, important differences and exceptions apply to migrant workers, as well as to sectors in which these typically work. The LPA, for example, largely excludes agriculture, domestic work, and sea fisheries – for which protection standards are specified in ministerial regulations.31 Ministerial Regulation 10, issued in 1998, stipulated until recently which sections of the LPA applied to sea fisheries; and whilst it upheld some relevant protective measures for workers, an analysis by the International Organization for Migration (IOM) concluded that only about 10% of the LPA’s provisions pertained to workers in the fishing industry.32
Regulations have also tied migrant workers to specific employers, in that by leaving their workplace they are at risk of forfeiting their work permit in Thailand33 –thereby decreasing their bargaining power and making them more vulnerable to abuse and exploitation. This is further exacerbated by restrictions on migrant workers’ ability to form trade unions or serve as union leaders which, given their predominance in sectors that are typically not unionised, including fishing, leaves them without recognised or organised representation.34
Recruitment and working conditions in the fishing industry in practice
The ILO, in 2014, published the most in-depth study to date on recruitment practices and employment conditions in the Thai fishing sector. In a survey among almost 600 fishermen from Cambodia, Myanmar, and Thailand, more than 5% of all respondents indicated that they had either been deceived or coerced into working on fishing boats. Such experiences were especially pronounced among migrant workers from Myanmar, as well as among respondents who had worked on long-haul boats. Indeed, whilst only 3% of workers on short-haul vessels suggested that they had not freely consented to their work, the share among those on long-haul boats was 16%.35
In the absence of attractive (or any) regular migration opportunities for work in the Thai fishing industry, brokers and social networks were key for both voluntary and involuntary recruitment amongst Cambodian and Myanmar nationals. For those deceived or coerced into work on fishing boats in the sample, most were recruited by brokers, either from their country of origin or Thailand, with a smaller share suggesting that their relatives forced them to take up such work.36 Deceptive broker practices typically involved misinformation about the sector, nature, or conditions of work.37
A general lack of written contracts in the industry adds to the limited transparency about agreed employment conditions.38 Amongst the close to 600 fishermen surveyed by the ILO, only 6% had signed a contract with their employer before work commenced.39 The clarity about agreements on the nature of work is further compromised by the various actors often involved in the recruitment process. The Labour Rights Promotion Network Foundation (LPN) has identified at least ten different types of brokers with different operational models and price schemes in the Thai province of Samut Sakhon alone.40
Various reports have detailed the extent of exploitative employment conditions in the fishing industry, including excessive working hours of 20 hours a day at times, limited to no payment, or different forms of violence and abuse.41 The latter may involve insufficient food supplies, sleep deprivation, beatings (including by use of toxic stingray tails), other methods of torture, and even execution-type killings.42 Workers who are too ill to work may simply be thrown overboard, while captains trade fishermen between boats as necessary.43
The latter, as well as practices of transhipment whereby fishing vessels deliver their catch to large cargo boats and in return receive essential supplies, means that there are fishermen out at sea for years without ever reaching shore. E
ven when vessels anchor in harbours, workers are prevented from leaving through debt bondage,44 threats of penalty, violence, or denunciation to authorities – or by being kept in cages, as reported from the Indonesian island of Benjina.45 Some feel so hopeless that they simply jump overboard.
Whilst reports from Benjina and Ambon have made headlines in recent times, Thai boats keeping workers in conditions of forced labour have been reported elsewhere as well, such as more recently in Papua New Guinea.46 This may in part be a sign of territorial diversion due to increased efforts against IUU fishing and human trafficking by Indonesian authorities, including through a temporary moratorium on issuing fishing licenses, a ban on transhipment at sea, or seizures and demolition of foreign vessels found fishing illegally in Indonesian waters.47
Recent government efforts to address human trafficking in the Thai fishing industry48
Frequent reports on both government and industry failures to address human trafficking in the Thai fishing sector, and the shocking human tragedies that have come to light as a result, have begun to jeopardise trade relations with important export markets. The European Union (EU) has issued a ‘yellow card’49 to Thailand in relation to IUU fishing requiring corrective interventions, without which the EU could resort to banning fisheries imports from Thailand. Meanwhile, the United States (US) has closed a loophole in its domestic legislation that allowed products made by child or forced labour to enter the US market if there was consumptive demand.50 With Thai fish and shrimp currently featuring on a US Department of Labor list of goods produced by child or forced labour, trade sanctions are threatening.51
In addition, the US State Department’s Trafficking in Persons Report, an annual benchmark for governments’ compliance with minimum standards in countering human trafficking, issued a ‘Tier 3’52 status to Thailand, the lowest possible ranking, in 2014 and 2015. Whilst the formal sanction regime attached to a ‘Tier 3’ ranking is insignificant and often waived, the report is a widely consulted diplomatic tool and, for countries with low positions, has important reputational consequences. Although Thailand has been upgraded in the 2016 report, two years on ‘Tier 3’ have further contributed to international buyers scrutinising their Thai supply chains related to fishing and demanding change, for fears of reputational damage and consumer losses.
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