• To the Japanese Government
  
• To the Thai Government
  
• To the Japanese and Thai Governments
  
• To All Governments
  
• To Intergovernmental Organizations
  

OWED JUSTICE Thai Women Trafficked into Debt Bondage in Japan Human Rights Watch New York · Washington · London · Brussels Copyright © September 2000 by Human Rights Watch. All rights reserved. Printed in the Unted States of America. ISBN 1-56432-252-1 Library of Congress Card Number: 00-107963

V. INTERNATIONAL LEGAL STANDARDS ON TRAFFICKING IN WOMEN

Trafficking, debt bondage, forced labor, and other abuses commonly suffered by women during their migration from Thailand to Japan, and their subsequent employment in Japan, constitute violations of these women's human rights. These rights are enumerated in international conventions that Japan and Thailand have acceded to or ratified, thereby committing their governments to take the steps necessary to uphold these rights and to provide redress when violations occur. ⁽⁹³⁾ By allowing perpetrators to exploit migrant women with virtual impunity --and by failing to check corruption among government officials who facilitate these crimes--the Japanese and Thai governments fail to live up to their international obligations and exacerbate women's vulnerability to abuse.

To the extent that the failure to protect the human rights of migrant women from Thailand reflects discrimination on the basis of gender, race, nationality and/or immigration status, it also amounts to a violation of the prohibition of discrimination in the protection of human rights, as established under the International Covenant on Civil and Political Rights (ICCPR). ⁽⁹⁴⁾The Human Rights Committee, the international treaty body responsible for monitoring states' compliance with the ICCPR, has made it clear that human rights apply regardless of nationality or statelessness, and that states have a responsibility to guarantee basic human rights equally for both citizens and aliens. ⁽⁹⁵⁾ Women's right to equal enjoyment of human rights has been reaffirmed by the Convention on the Elimination of All Forms of Discrimination Against Women (Women's Convention). ⁽⁹⁶⁾When governments fail to effectively prevent or respond to abuses --as is true in the case of trafficking in women from Thailand to Japan--it constitutes a violation of specific obligations that the states have undertaken under the terms of that convention. Finally, many of the abuses documented in this report are prohibited under Japanese and Thai domestic legislation, ⁽⁹⁷⁾ and governments have an obligation to exercise due diligence in enforcing their laws, providing all persons with equal protection under the law and equal access to legal remedies for violations. ⁽⁹⁸⁾
 

Trafficking in women--a human rights violation

"Trafficking" has been used in international legal instruments to refer to the movement of, and trade in, human beings, usually in connection with slavery, prostitution, and/or sexual exploitation. However, none of these documents articulates a clear definition of the term, so a precise legal meaning has yet to be established. In recent years, increased attention to the global problem of trafficking in persons has led to a widespread push to develop a working definition of trafficking that encompasses the full nature and scope of the abuse. Further impetus for such efforts was provided by the United Nations' decision to draft a convention against transnational organized crime, supplemented by an optional protocol on trafficking in persons. To this end, the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime (Ad Hoc Committee) was established by General Assembly resolution in December 1998, with a mandate to draft the convention and the trafficking protocol by the end of 2000. In February 2000, the Office of the United Nations High Commissioner for Human Rights (UNHCHR), the Office of the United Nations High Commissioner for Refugees (UNHCR), the United Nations Children's Fund (UNICEF), and the International Organization for Migration (IOM) submitted a joint statement to the Ad Hoc Committee recommending the following definition of trafficking: "the recruitment, transportation, transfer or harboring or receipt of any person for any purpose or in any form, including the recruitment, transportation, transfer or harboring or receipt of any person by the threat or use of force or by abduction, fraud, deception, coercion or abuse of power for the purposes of slavery, forced labor (including bonded labor or debt bondage) and servitude." They noted that "servitude" should be understood in this context to include "practices that have been defined elsewhere as 'contemporary forms of slavery,' such as forced prostitution." ⁽¹⁰³⁾ The United Nations High Commissioner for Human Rights, Mary Robinson, also submitted an "Informal Note" to the Ad Hoc Committee explaining that, in describing the purposes for which persons are trafficked, the committee should drop the "imprecise and emotive" term "sexual exploitation," and refer instead to trafficking for "forced labor and/or bonded labor and/or servitude," terms that explicitly include coercion and can be applied to any type of labor or service. ⁽¹⁰⁴⁾ Human Rights Watch understands that a definition of trafficking should include all acts related to the recruitment, transport, transfer, sale, or purchase of human beings by force, fraud, deceit, or other coercive tactic, for the purpose of placing them into conditions of forced labor or practices similar to slavery, in which labor is extracted through physical and/or non-physical means of coercion. Such coercion may include blackmail, fraud, deceit, isolation, threat or use of physical force, or psychological pressure. We support the evolving international consensus that trafficking must be understood to apply to all labor sectors, including, but not limited to, the sex industry, while being limited to those instances in which some form of coercion is present. This consensus reflects the recognition that persons "trafficked" for various types of employment endure similar violations, as well as the conviction that distinguishing between voluntary and coercive acts is crucial to maintaining respect for the ability of women to purposefully and voluntarily migrate for work. ⁽¹⁰⁵⁾ The United Nations Special Rapporteur on Violence Against Women, Radhika Coomaraswamy, adopted a definition of trafficking that incorporates both of these elements in a report released in February 2000. The report dealt with human rights violations suffered by women during both voluntary migration and trafficking, with trafficking in persons defined as "the recruitment, transportation, purchase, sale, transfer, harbouring or receipt of persons: (i) by threat or use of violence, abduction, force, fraud, deception or coercion (including abuse of authority), or debt bondage, for the purpose of: (ii) placing or holding such person, whether for pay or not, in forced labor or slavery-like practices, in a community other than the one in which such person lived at the time of the original act described in (i)." ⁽¹⁰⁶⁾

Other relevant standards for combating trafficking in women

Forced labor, servitude, and practices similar to slavery

Under the ICCPR, Japan and Thailand have an obligation to take the steps necessary to prevent all forms of slavery, the slave-trade, servitude, and forced or compulsory labor, and they must provide remedies for the victims when violations occur. ⁽¹⁰⁸⁾Slavery and the slave-trade are defined under the Slavery Convention as, respectively, "the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised" and "all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves." Several practices similar to slavery are elaborated under the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. This convention condemns debt bondage, serfdom, compulsory marriage, and the pledge of a child's labor to another person by the child's guardian as institutions and practices similar to slavery. According the convention, "A person of servile status" means a person in the condition or status resulting from any of the following practices:
 

(a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined;
 

(b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labor on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status;
 

(c) Any institution or practice whereby:

(i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or 

(ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or 

(iii) A woman on the death of her husband is liable to be inherited by another person;
 

(d) Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour. ⁽¹⁰⁹⁾
 

These definitions make clear that even if a person has agreed to perform labor or other services, the arrangement may qualify as a practice similar to slavery if the terms and conditions of the agreement have not been adequately defined or if the person loses the liberty to change his/her status. The supplementary convention on slavery also identifies all acts and attempted acts intended to place a person into slavery or other servile status identified in the convention as practices similar to slavery which should be subject to criminal penalty. ⁽¹¹⁰⁾

As parties to the International Labor Organization (ILO) Convention 29 concerning Forced or Compulsory Labor, Japan and Thailand have made an additional commitment to "suppress the use of forced or compulsory labor in all its forms within the shortest possible period." ⁽¹¹¹⁾ This convention defines forced or compulsory labor as "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily," and specifically prohibits "forced or compulsory labor for the benefit of private individuals, companies or associations." ⁽¹¹²⁾

The most common abuse that Human Rights Watch documented in the trafficking of women from Thailand to Japan was debt bondage. Women were forced to work without wages until they repaid extraordinarily high "debts," amounts exponentially exceeding any costs incurred through their travel to Japan. Some--though not all--of the women understood that they would have a debt to repay when they agreed to migrate, but the length and nature of the services to be performed were not adequately limited or defined. Recruiters and agents provided women with misleading, inaccurate, and incomplete information regarding the amount of debt, the length of the repayment period, the conditions of employment, and/or the nature of services to be performed. After the women arrived in Japan, they had no control over the terms or conditions of their employment. A woman's initial debt was typically based on the "price" negotiated by her broker and employer, and her employer then enjoyed full control over her working conditions and debt repayment calculations. In addition, many of the women we interviewed indicated that the value of their labor was not "reasonably assessed" and "applied towards the liquidation of the debt." Rather, employers augmented debts with arbitrary expenses, fines, and dishonest account keeping, and even maintained the power to "resell" women into higher levels of debt before their initial debt was paid off.

Human Rights Watch also documented a number of other coercive tactics that were used to control women during their travel, job placement, and employment. These included the threat and use of physical harm against the women and/or their family members, strictly enforced rules against going outside without permission and an escort, and other forms of intimidation and isolation. When agents, brokers, and employers used such tactics to extract labor or to place women into a state of servitude, they acted in violation of the prohibitions against forced or compulsory labor, practices similar to slavery, and servitude. Many of these tactics threaten to violate other protected rights as well, such as the women's right to life; to freedom from cruel, inhuman or degrading treatment; to liberty and security of person; and to freedom of movement and freedom to choose her residence. ⁽¹¹³⁾

There is also a component of sex discrimination in the acts of violence inflicted on trafficked women. In 1992, the Committee on the Elimination of All Forms of Violence Against Women (CEDAW), established to monitor compliance with the Women's Convention, explained that the general prohibition against gender discrimination "includes gender-based violence--that is, violence which is directed against a woman because she is a woman or which affects women disproportionately. It includes acts which inflict physical, mental, or sexual harm or suffering, threats of such acts, coercion or other deprivations of liberty." ⁽¹¹⁴⁾ The committee also noted: "States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and to provide compensation." ⁽¹¹⁵⁾
 

Labor rights violations

The International Covenant on Economic, Social and Cultural Rights (ICESCR)recognizes the right to fair wages, reasonably limited working hours, and rest days. ⁽¹¹⁶⁾ In violation of these standards, the women we interviewed were given no compensation at all for months or longer, while they worked excessively long hours--without days off for rest or, in some cases, even illness--to pay off illegal and arbitrarily inflated "debts." The ICESCR also provides that all workers have a right to safe and healthy working conditions. ⁽¹¹⁷⁾ Despite this guarantee, women reported that their safety and health were jeopardized by employers who limited and, in some cases, denied them access to health services and medication; compelled them to accept physically abusive clients; and coerced them into performing sexual services without condoms, exposing them to the risk of contracting HIV and other sexually transmitted diseases. 

Kept under constant surveillance and threatened with retaliation if they tried to escape, women from Thailand working in debt bondage in the Japanese sex industry had little choice but to accept these conditions. Moreover, even when they were released from debt--or detained by Japanese officials--they were not given any opportunity to seek redress. As stated above, the ICCPR requires that states guarantee all persons equal protection under the law. Consequently, trafficked women must have the same access to Japanese labor law protections as all other persons in Japan. Though the women's immigration status did not permit their employment under Japanese immigration laws, this does not affect their labor rights vis-à-vis their employers--according to either international law or Japanese domestic law--and should not have affected their ability to seek compensation in Japan for work they had done. ⁽¹¹⁸⁾In addition, as parties to the ICESCR, Japan and Thailand have undertaken to uphold the rights provided under this covenant without discrimination based on sex, nationality or other status. ⁽¹¹⁹⁾The Japanese government's failure to prosecute labor rights violations endured by trafficked women allowed employers to continue unjustly to enrich themselves and thus encouraged the continued exploitation of the women. The failure of Thai government officials charged with protecting the labor rights of Thai nationals in Japan to assist female migrants only encouraged this injustice. ⁽¹²⁰⁾ ====================

93. ICCPR, Articles 2 and 26. See also: Human Rights Committee, General Comment 15, "The position of aliens under the Covenant" (Twenty-seventh session, 1986), in which the Committee explained: "In general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness. Thus, the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof. This guarantee applies to aliens and citizens alike. Exceptionally, some of the rights recognized in the Covenant are expressly applicable only to citizens (art. 25), while article 13 applies only to aliens. However, the Committee's experience in examining reports shows that in a number of countries other rights that aliens should enjoy under the Covenant are denied to them or are subject to limitations that cannot always be justified under the Covenant." " "

94. ICCPR, Article 2(1): "Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

95. Human Rights Committee, General Comment 15, "The position of aliens under the Covenant" (Twenty-seventh session, 1986), in which the Committee explained: "In general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness. Thus, the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof. This guarantee applies to aliens and citizens alike. Exceptionally, some of the rights recognized in the Covenant are expressly applicable only to citizens (art. 25), while article 13 applies only to aliens. However, the Committee's experience in examining reports shows that in a number of countries other rights that aliens should enjoy under the Covenant are denied to them or are subject to limitations that cannot always be justified under the Covenant."

96. Women's Convention, Article 3: "States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women , for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men." Ratified by Japan on June 25, 1985. Acceded to by Thailand on August 9, 1985.

97. See the "Japanese Government Response" and "Thai Government Response" chapters for a discussion of relevant domestic legislation.

98. ICCPR, Article 26: "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

General Assembly resolution 48/104 of 20 December 1993, the Declaration on the Elimination of Violence against Women, notes States' responsibility to "[e]xercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons."

See also: Committee on the Elimination of All Forms of Violence Against Women, "Violence Against Women," General Recommendation No. 19 (eleventh session, 1992), U.N. Document CEDAW/C/1992/L.1/Add.15, in which the Committee observed, "Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation."

99. Article 6.

100. Ratified by Japan on April 22, 1994. Acceded to by Thailand on March 27, 1992.

101. Articles 34 and 35, respectively.

102. Note that the primary focus of this convention is not trafficking, but prostitution. The term "trafficking" is not defined in the document, nor is any distinction made between coercive and non-coercive practices on the part of persons involved in the prostitution of others. Human Rights Watch believes that a key defining element of the human rights abuse of "trafficking in persons" is the coercive and slavery-like nature of the practice.

103. Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime, "Note by the Office of the United Nations High Commissioner for Human Rights, the Office of the United Nations High Commissioner for Refugees, the United Nations Children's Fund and the International Organization for Migration on the draft protocols concerning migrant smuggling and trafficking in persons," February 22, 2000. A/AC.254/27/Corr.1 (A/AC.254/27 was originally submitted on February 8, 2000 but UNHCR was omitted from the title).

104. Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime, "Informal note by the United Nations High Commissioner for Human Rights," June 1, 1999. A/AC.254/16.

105. The Global Alliance Against Trafficking in Women (GAATW), a Bangkok-based NGO, has been one of the leading organizations worldwide in documenting the global phenomenon of trafficking in women and articulating a working definition of the term. Its definition fulfills all of these criteria.

106. Commission on Human Rights, "Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, on trafficking in women, women's migration and violence against women, submitted in accordance with Commission on Human Rights resolution 1997/44," E/CN.4/2000/68, 29 February 2000, paragraph 13.

107. "Message from the High Commissioner, Mary Robinson, to the Asia-Pacific Symposium on Trafficking in Persons," Tokyo, Japan, January 20, 2000.

108. Article 8 provides: "No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited," "No one shall be held in servitude," "No one shall be required to perform forced or compulsory labor." Ratified by Japan on June 21, 1979. Acceded to by Thailand on October 29, 1996.

109. Articles 1, 7(b).

110. Article 6.

111. Article 1.

112. Ratified by Japan on November 21, 1932 and by Thailand on February 26, 1969. Note also that in Japan, "in the field of labor law, it is generally accepted that the ratified conventions of the ILO have legal effect at national level. . . . In several cases, including a few Supreme Court decisions, the Courts have declared or implied that a legislative provision which contravenes one of the ILO conventions is null and void." (Dr. R. Blanpain [ed.], International Encyclopedia for Labor Law and Industrial Relations, vol. 7, p.52).

113. ICCPR, Articles 6(1), 7, 9(1), 12(1).

114. Committee on the Elimination of All Forms of Violence Against Women, "Violence Against Women," General Recommendation No. 19 (eleventh session, 1992), U.N. Document CEDAW/C/1992/L.1/Add.15.

115. Ibid.

116. Article 7(a)(d). Ratified by Japan on June 21, 1979. Acceded to by Thailand on September 5, 1999. 

Note that persons under the age of eighteen years old are also entitled to further labor protections under the Convention on the Rights of the Child (see Articles 32 and 34), ratified by Japan on April 22, 1994 and acceded to by Thailand on March 27, 1992.

117. Article 7(b).

118. As noted above, the labor rights established under ICESCR apply to all, without discrimination based on nationality or other status. And though few states have ratified the international conventions that deal explicitly with the rights of undocumented migrant workers, these instruments have emphasized the importance of this principle. ILO Convention 143 (the Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment) states: "Without prejudice to measures designed to control movements of migrants for employment by ensuring that migrant workers enter national territory and are admitted to employment in conformity with the relevant laws and regulations, the migrant worker shall, in cases in which these laws and regulations have not been respected and in which his position cannot be regularized, enjoy equality of treatment for himself and his family in respect of rights arising out of past employment as regards remuneration, social security and other benefits." And, according to the Migrants' Convention,while states should take steps to eliminate the employment of migrants in an irregular situation, "The rights of migrant workers vis-à-vis their employer arising from employment shall not be impaired by these measures." The Japanese government recognizes this standard in principle and does not make legal distinctions regarding workers' labor rights based on their immigration status, but in practice, we found that undocumented women trafficked from Thailand had little access to Japanese labor rights protections.

119. ⁰Article 2(2): The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 2(3) allows developing countries some discretion with regard to the rights of non-nationals: "[d]eveloping countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals." However, this exception does not apply to the highly developed country of Japan.

The nature of states' obligation to guarantee the rights provided under ICESCR was elaborated by the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, (Maastricht, January 22-26, 1997). This document is not binding, but provides good guidance for the implementation of the covenant. According to the Maastricht Guidelines, "any discrimination on grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the Covenant" (Article 11).

120. See discussion in the "Thai Government Response" chapter.