Thailand Law Journal 2009 Spring Issue 1 Volume 12

Burmese migrants to Thailand often face deplorable working conditions documented by groups such as the Migrant Action Program, and the Shan Human Rights Foundation in its documentary about migrant Burmese workers entitled Dispossessed. [FN126] Many of the employment opportunities available to both legal and irregular migrants are low-paid, low-skilled jobs such as construction, agriculture, factories, or domestic work. [FN127] Labor laws are violated in a variety of ways. Some workers are required to work long hours for less than minimum wage. [FN128]“The Burmese are often paid much less than Thailand's minimum wage of Baht 133 or $3.15 a day--60 to 80 baht a day is a common wage.”  [FN129]

Working conditions may threaten workers' safety and health, such as the lack of safety gear or inadequate instruction in the use of dangerous tools or noxious materials, and when workers are injured or fall sick, they are fired. [FN130] Work may be seasonal, leaving some agricultural workers unemployed for up to two months. [FN131] Other employers fail to pay workers even after months of work. [FN132] Some workers depend on housing on the worksite arranged by their employers. Undocumented workers are confined to the worksites for fear of arrest and deportation if they leave. [FN133] Other employers hold on to workers' citizenship documents and work permits. This leaves them vulnerable to exploitation by employers, including sexual abuse. Dispossessed cites several cases of trafficking and sexual exploitation by employers, including teenage girls who were bought and sold into prostitution, girls who were raped, and a case in which an employer tried to pressure a sick mother to sell her fourteen year old daughter for US $5,000.

Additionally, many children of migrant workers are not eligible for education and spend their time laboring for wages. [FN134] In red-light districts, it is common to find children, from infants to teens, selling flowers until the bars close in the early hours of the morning. Most of the children are unaccompanied by adults, and are subject to sexual exploitation. Sadly, economic pressures make some children vulnerable to such offers. The combination of all of these complex and interrelated factors increases the risk and incidence of trafficking and other forms of exploitation for Burmese living in Thailand.

H. Conclusion

Trafficking takes place in the context of cultural attitudes, economic interests, and legal frameworks on the part of both sending and receiving countries.  Thailand has a long history of prostitution and trafficking. In Thailand, the deeply-rooted cultural acceptance of prostitution combined with the significant economic interests in the trade, create a great demand for women and girls to provide sexual services. This demand is supported by sometimes contradictory or unsophisticated legal policies, which on the one hand prohibit prostitution --de jure--while on the other hand allowing --de facto--the sex industry to exist.

As the demand has persisted, the supply has shifted over the years to take in the most vulnerable populations.  Presently, the human rights and economic situation in Burma feeds the supply of prostituted women and girls. Various push and pull factors cause these women to migrate to Thailand. However, once there, they are at significant risk of becoming victims of human trafficking and sexual exploitation. These risks are compounded by the cultural attitudes, legal status, and working conditions they face in Thailand.

III. Putting it Back Together Again

This Article does not purport to be a comprehensive exploration of all of Thailand's prostitution, trafficking, migration and labor law, policies and practices. However, in regards to the issues raised above, changes in the following areas are recommended in order to address the demand side factors and reduce the vulnerability of women and girls from Burma to prostitution, trafficking, and other forms of exploitation in Thailand.

A. Trafficking Policy

In order to adequately address the problem of trafficking and prostitution of Burmese women and girls in Thailand, one must first address the nexus between migration, labor and trafficking. The U.N. Special Rapporteur investigating the sale of children, child prostitution and child pornography, stated in his 2006 Annual Report: “commercial sexual exploitation has to be understood in the wider context of restrictive migration policies coupled with a demand for cheap labour.”  [FN135] Furthermore, attention must be given not just to trafficking for purposes of prostitution but to trafficking for purposes of forced labor and in general. The vulnerability of those trafficked for domestic and other forms labor must also be recognized, and they must be protected from sexual and other exploitation.

B. Asylum Policy

Accession to the Refugee Convention [FN136] will guarantee full protection to refugees from Burma and ensure that they are not treated as economic migrants. Cultural, economic and other factors that underlie the disparate treatment of refugees from Shan State must also be addressed.

C. Migration Policy

The vulnerability of irregular migrants to trafficking must be recognized and safe avenues for migration provided. [FN137] “If legal avenues were available for voluntary migration the abuse through deception and possibly the illegal selling and kidnapping could be cured.”  [FN138] Policies that lead to irregular and vulnerable labor migration should be reviewed and modified. [FN139]

D. Labor Policy

Similarly, the dependence on migrant labor and their contribution to the economy must be recognized.  Long-term legal and work status must be provided for trafficked persons and non-trafficked persons alike.  Labor laws must be enforced and protections extended to all laborers, including those in unrecognized forms of labor such as domestic work, prostitution, and illegal begging.  Vulnerability to sexual and other forms of exploitation in a variety of work environments must be recognized and addressed.

[FN126]. Videotape: Dispossessed (Shan Human Rights Foundation 2000) [hereinafter Dispossessed Documentary].

[FN127]. Nang Lao Liang Won, supra note 52.

[FN128]. Somwong, supra note 67.

[FN129]. Migration News: Southeast Asia, supra note 122.

[FN130]. Dispossessed, supra note 56.

[FN131]. Id.

[FN132]. Id.

[FN133]. Id.

[FN134]. Id.

[FN135]. U.N. ECOSOC, supra note 93, at P 49.

[FN136]. U.N. Convention Relating to the Status of Refugees, supra note 70.

[FN137]. U.N.Econ. & Social Comm'n for Asia & the Pacific (UNESCAP), Combating Human Trafficking in Asia: A Resource Guide to International and Regional Legal Instruments, Political Commitments and Recommended Practices, U.N. Doc. ST/ESCAP/2293, U.N. Sales No. E.03.II.F.5 (2003) [hereinafter Combating Human Trafficking in Asia], available at http:// www.unescap.org/esid/gad/PDF/2293.pdf (last visited Apr. 8, 2006).
               Recommended Guideline 7(7) provides that States, in partnership with intergovernmental and non-governmental organizations and where appropriate, using development and cooperation policies and programmes, should consider examining ways of increasing opportunities for legal, gainful and nonexploitative labour migration.  Recommended Guideline 7(7) further provides that the promotion of labour migration by the State should be dependent on the existence of regulatory and supervisory mechanisms to protect the rights of migrant workers.
        Id. at 110.

[FN138]. Juree, supra note 78.

[FN139]. Combating Human Trafficking in Asia, supra note 137.
               Recommended Guideline 7(6) provides that States, in partnership with intergovernmental and non-governmental organizations and where appropriate, using development and cooperation policies and programmes, should consider reviewing and modifying policies that may compel people to resort to irregular and vulnerable labour migration.  Recommended Guideline 7(6) further provides that this process should include examining the effect on women of repressive and/or discriminatory nationality, property, immigration, emigration and migrant labour laws.
        Id. at 110.

This article is published with the kind permission of Christa Foster Crawford. The article originally appeared in Cardozo Journal of Law & Gender, Summer 2006 issue.