Thailand Law Journal 2009 Spring Issue 1 Volume 12

E. Equitable Remedies for Unrecognized Labor

Remedies for victims of trafficking should not differ because of the industry into which the person has been trafficked; this penalizes the victim.  Instead, equitable remedies should provide for back wage claims and other protections for persons in domestic labor, begging, prostitution, and other labor situations that are not subject to labor law.  Both the Trafficking Protocol [FN140] and the CRC Optional Protocol [FN141] require states to have adequate measures or procedures for trafficking victims to seek compensation for damage suffered.

F. Demand

Although a number of supply-side factors are to blame for the migration of poor and vulnerable women and girls from Burma, demand-side factors both entice and entrap women in the sex industry in Thailand.  Thailand has a responsibility to address these demand factors under international law.  The UN Trafficking Protocol [FN142] obligates, and the Recommended Principles and Guidelines [FN143] call upon, states to address the demand and receiving side factors leading to trafficking and other exploitation. [FN144] Similarly, the Optional Protocol to the Convention on the Rights of the Child, [FN145] in the words of the Special Rapporteur, “underscores the need to raise public awareness in order to reduce consumer demand for the sale of children, child prostitution and child pornography while strengthening global partnership among all actors and improving law enforcement at the national level.”  [FN146] Finally, CEDAW requires states to take all appropriate measures to

modify the social and cultural patterns of conduct of men and women with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. [FN147]

G. Economics

The importance of economic necessity must be considered throughout the trafficking spectrum.  Prevention measures must recognize the need for viable economic options and provide realistic alternatives to prostitution.  Interventions and reintegration must recognize that sustainable solutions will differ for those who have been traditionally trafficked and for those who have “voluntarily” engaged in sex work because of economic force. Unless the economic need is addressed, the women and even girls will return to prostitution. Return and repatriation measures must recognize the lack of sustainable options in Burma, and that even trafficked people may want to return to Thailand. Rescue from trafficking is not the end of their troubles.

[FN140]. U.N. Trafficking Protocol, supra note 66, at art. 6(6).

[FN141]. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, art. 7, G.A. Res. 54/263, U.N. Doc. A/RES/54/263 (May 25, 2000) [hereinafter CRC Optional Protocol].

[FN142]. U.N. Trafficking Protocol, supra note 66.

[FN143]. U.N. ECOSOC, Recommended Principles and Guidelines on Human Rights and Human Trafficking, Report of the United Nations High Commissioner for Human Rights to the United Nations Economic and Social Council, U.N. Doc. E/2002/68/Add.1 (May 20, 2002).

[FN144]. Combating Human Trafficking in Asia, supra note 137.
               Article 9(5) of the Trafficking Protocol requires States to adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral or multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.  Recommended Principle 4 provides that “strategies aimed at preventing trafficking shall address demand as a root cause of trafficking.” Recommended Guideline 7 also provides that strategies aimed at preventing trafficking should take into account demand as a root cause. Recommended Guideline 7(1) provides that States, in partnership with intergovernmental and non-governmental organizations and where appropriate, using development and cooperation policies and programmes, should consider analyzing the factors that generate demand for exploitative commercial sexual services and exploitative labour and taking strong legislative, policy and other measures to address these issues.
        Id. at 109.

[FN145]. CRC Optional Protocol, supra note 141.

[FN146]. U.N. ECOSOC, supra note 93, at P 17.

[FN147]. Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, art. 5(a), U.N. Doc. A/Res/34/180 (Jan. 22, 1980), available at http:// www.un.org/womenwatch/daw/cedaw/text/econvention.htm.

12 Cardozo J.L. & Gender 821

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.