Modern-day Slavery at Sea: Human Trafficking in the Thai Fishing Industry

Article (PDF Available)inJournal of East Asia and International Law 11(1):75-76 · May 2018with 1,267 Reads
DOI: 10.14330/jeail.2018.11.1.04
Abstract
Most of the literature on modern-day slavery focuses on women and children as victims of the sex industry. This disproportionate emphasis on sexual exploitation has resulted in conflation of the term trafficking with prostitution, which has led to an understanding of human trafficking issues as separate from other workplace abuses that amount to slavery. By exploring modern-day slavery in the Southeast Asian fishing industry, this paper may fill a research gap within the study of human trafficking as well as sharpen our awareness of slavery practices, not only in the sex industry, but also in workplaces like fishing vessels and seafood processing factories. This paper will argue that the proximity of modern slavery to sexual exploitation and the lack of differentiation between smuggling and trafficking crime has led to the ignorance of contemporary slavery practices in other sectors.
Modern-day Slavery at Sea 75
XI JEAIL 1 (2018)
Zezen Z. Mutaqin
∗∗
Most of the literature on modern-day slavery focuses on women and children as
victims of the sex industry. This disproportionate emphasis on sexual exploitation has
resulted in conflation of the term trafficking with prostitution, which has led to an
understanding of human trafcking issues as separate from other workplace abuses that
amount to slavery. By exploring modern-day slavery in the Southeast Asian shing
industry, this paper may ll a research gap within the study of human trafcking as
well as sharpen our awareness of slavery practices, not only in the sex industry, but
also in workplaces like fishing vessels and seafood processing factories. This paper
will argue that the proximity of modern slavery to sexual exploitation and the lack of
differentiation between smuggling and trafficking crime has led to the ignorance of
contemporary slavery practices in other sectors.
Keywords
Human Trafcking, Slavery, Fishing Industry, Southeast Asia, Smuggling,
Sex Trafcking
Modern-day Slavery at Sea:
Human Trafcking in the
Thai Fishing Industry
The research and publication of this article is sponsored by Indonesia Endowment Fund for Education (LPDP Indonesia).
The author would like also to thank Professor Khaled Abou El Fadl for his insightful comments.
∗∗ SJD candidate at UCLA Law School; Lecturer at Sharia and Law School Syarif Hidayatullah State Islamic University
(UIN), Jakarta. LL.B. (UIN Jakarta), LL.M. (Melbourne). ORCID: https://orcid.org/0000-0002-5895-0813. The author
may be contacted at: zezen.zaenal@uinjkt.ac.id / Address: Fakultas Syariah dan Hukum, UIN, Jl. H. Djuanda No. 59
Ciputat, Jakarta, Indonesia.
DOI: http://dx.doi.org/10.14330/jeail.2018.11.1.04
76 Zezen Z. Mutaqin
I. Introduction
Modern-day slavery is omnipresent and connects directly to our lives, spanning from
clothing and entertainments to the food industry.
1
The 2015 US State Departments
Trafcking in Persons (TIP) Report estimated that around 27 million men, women,
and children have become victims of modern-day slavery in its various forms,
including sex trafficking, debt bondage, forced labor, and child exploitation.
2
If
including other estimations, there are likely around 45 million people living in slave-
like conditions, double the TIPs prediction.
3
We may never know the actual number
because the practice of modern-day slavery is hidden under the blanket of ignorance,
concealed by a widespread assumption that it was eradicated from our society
hundreds of years ago.
In modern times, slavery has been covered up under at least two different forms:
labor contracts and prostitution. These practices have been transformed into a subtle
form of oppression and servitude under different names. In the most extreme case,
however, chattel slavery is still openly practiced and has become a backbone for the
survival of many businesses such as mining, plantation and agriculture, construction,
coal, and, notoriously, shing industry.
Why does slavery still exist in the modern world? How could it be possible that
45 million people are living in slavery right now? In answering these questions,
Kevin Bales, a leading specialist in this eld, proposed three primary explanations: (1)
the exponential growth of the world population, which provides a glut of potential
slaves; (2) post-colonial modernity, which has created dramatic economic and social
changes such as political conicts, natural disasters, and economic inequality, causing
a complex humanitarian crisis; and (3) corruption, especially among state ofcials like
police and immigration ofcers.
4
Utilizing Bales framework, my research will engage in a forgotten story of
modern-day slavery: the shing industry in Southeast Asia, particularly in Thailand.
Even though these practices have existed for decades, they are still relatively
1 As of 2012, there were around 139 goods from 75 countries produced by child and forced labor. See The US DepT.
of Labor, LiST of GooDS proDUceD by chiLD Labor or forceD Labor (2016), available at https://www.dol.gov/sites/
default/files/documents/ilab/reports/child-labor/findings/TVPRA_Report2016.pdf (last visited on Mar. 4, 2018).
2 TIP Report 2015, available at https://www.state.gov/documents/organization/245365.pdf (last visited on Mar. 5, 2018).
3 See Global Slavery Index, available at http://www.globalslaveryindex.org/findings (last visited on Mar. 5, 2018).
Another organization like Polaris and ILO has different estimation by mentioning around 20 million victims of modern-
day slavery.
4 See, e.g., K. baLeS, enDinG SLavery 14-6 (2000).
Modern-day Slavery at Sea 77
XI JEAIL 1 (2018)
unknown. Only recently have they attracted the attention of some international
organizations and media outlets. Abundant data and information have been
published by international organizations, such as the International Organization for
Migration (IOM),
5
the UN,
6
the International Labor Organization (ILO),
7
Human
Rights Watch,
8
Greenpeace,
9
and the Environmental Justice Foundation (EJF).
10
This is, in addition to investigative media reports, published by The Associated Press
(AP),
11
Aljazeera,
12
The Guardian,
13
and BBC.
14
However, academic publications still very rarely mention slavery in fishing
industry. Kevin Bales monumental book, Disposable people,
15
for example, refers to
the modern-day slavery in Thailand as the main case for his book, but he does not
mention the phenomena of slavery in shing industry at all. Nicola Pipers review
on the research on trafficking in Southeast Asia and Oceania also fails to mention
the slavery in seafood industry.
16
Tom Obokatas book, Trafficking of Human beings
5 ioM, TrafficKinG of fiSherMen in ThaiLanD (2011), available at https://www.iom.int/jahia/webdav/shared/shared/
mainsite/activities/countries/docs/thailand/Trafficking-of-Fishermen-Thailand.pdf (last visited on Apr. 17, 2018).
6 UNODC, Transnational Organized Crime in the Fishing Industry (2011), available at http://www.unodc.org/
documents/human-trafficking/Issue_Paper_-_TOC_in_the_Fishing_Industry.pdf (last visited on Apr. 17, 2018).
7 The following are the reports from ILO: The Mekong Challenge, Underpaid, Overworked and Overlooked: The realities
of young migrant workers in Thailand (Vol. 1, 2006), available at http://www.ilo.org/asia/publications/WCMS_
BK_PB_67_EN/lang--en/index.htm; Caught at Sea--Forced Labor and Trafficking in Fisheries (2013), available at
http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_214472.pdf; and
Employment Practices and Working Conditions in Thailand’s Fishing Sector (2014), available at http://www.ilo.org/
dyn/migpractice/docs/184/Fishing.pdf (all last visited on Apr. 17, 2018).
8 hUMan riGhT WaTch, froM The TiGer To The crocoDiLe abUSe of MiGranT WorKer in ThaiLanD (2010), available at
https://www.hrw.org/sites/default/files/reports/thailand0210_insert_low.pdf (last visited Apr. 17, 2018).
9 Greenpeace, SUppLy chaineD-hUMan riGhTS abUSeS in The GLobaL TUna inDUSTry (2015), available at http://www.
greenpeace.org/usa/wp-content/uploads/2015/11/Supply-chained.pdf (last visited on Apr. 17, 2018).
10 The EJF published a series of report as follow: Sold to the Sea--Human Trafficking in Thailand’s Fishing Industry
(2013), available at http://un-act.org/publication/view/sold-sea-human-trafficking-thailands-fishing-industry; Slavery
at Sea: The Continued Plight of Trafficked Migrants in Thailand’s Fishing Industry (2014), available at https://
ejfoundation.org/resources/downloads/EJF_Slavery-at-Sea_report_2014_web-ok.pdf (all last visited on Apr. 17, 2018).
11 ap, Seafood from Slaves (2015-16), available at http://www.ap.org/explore/seafood-from-slaves (last visited on Mar.
4, 2018).
12 F. Lines, A trafficked fisherman’s tale: ‘My life was destroyed,’ aLjazeera, Mar. 5, 2016, available at http://www.
aljazeera.com/indepth/features/2016/03/trafficked-fisherman-tale-life-destroyed-160303122451399.html (last visited
on Mar. 5, 2018).
13 Staff reporter, Thailand accused of failing to stamp out murder and slavery in fishing industry, GUarDian, Mar. 30,
2017, available at https://www.theguardian.com/global-development/2017/mar/30/thailand-failing-to-stamp-out-
murder-slavery-fishing-industry-starvation-forced-labour-trafficking (last visited on Mar. 5, 2018).
14 See What Does Modern Slavery Look Like?, bbc, May 31, 2016, available at http://www.bbc.com/news/world-
asia-36416751 (last visited on Mar. 5, 2018).
15 K. baLeS, DiSpoSabLe peopLe: neW SLavery in The GLobaL econoMy (2000).
16 N. Piper, A Problem by a Different Name? A Review of Research on Trafficking in South-East Asia and Oceania, 43
inTL. MiGraTion 203 (2005).
78 Zezen Z. Mutaqin
from a Human rigHTs perspecTive, compares human trafcking practices in Thailand,
Poland, and the UK,
17
but it omits forced labor and slavery in shing industry from
this discussion. The Thai scholar Naparat Kranrattanasuit has written a more recent
book, ASEAN anD Human Trafficking,
18
in which Cambodia, Thailand and Vietnam
are presented as case studies. This book mentions the problem of human trafcking
in their fishing industry. Merely in passing, it primarily focuses on the role of the
ASEAN combating modern-day slavery in general. Most researchers investigating
modern-day slavery focus on sex trafcking and child exploitation.
19
So far, Noami
Jiyung Bang is possibly the only author who pays attention to the phenomenon
of human trafficking in the fishing industry, in her proposal of a comprehensive
initiative to reduce human trafcking in the global seafood chain.
20
Most literature on modern-day slavery focuses on women and children as victims
of the sex industry. This disproportionate emphasis on sexual exploitation has
resulted in conation of the term trafcking with prostitution and the sex industry.
21
This amalgamated image has led to, as Jennifer Chacon has said, detaching human
trafficking issues from other workplace abuses that amount to slavery.
22
Thus, by
elaborating the case of modern-day slavery in fishing industry, this paper may
address such gap within the study of human trafficking, as well as heighten our
awareness of slaverys presence not only in the sex industry but in other workplaces.
The author would argue that the conflation of modern slavery with sexual
exploitation on the one hand, and the lack of clear differentiation between smuggling
and trafficking crimes, on the other, has led to ignorance, especially among state
officials and state enforcement agencies, that slavery also occurs in other sectors.
In the context of Southeast Asia, a mix between migration, smuggling, and human
trafcking has made the problem of combating slavery even more challenging. This
paper is composed of four parts including Introduction and Conclusion. Part two
will discuss shing industry and slavery. Part three will reect legal and conceptual
17 See generally T. oboKaTa, TrafficKinG of hUMan beinGS froM a hUMan riGhTS perSpecTive ToWarD a hoLiSTic
approach (2006).
18 n. KranraTTanaSUiT, aSean anD hUMan TrafficKinG caSe STUDieS of caMboDia, ThaiLanD, anD vieTnaM (2014).
19 For details on human (sex) trafficking in Thailand, see S. Molland, The Value of Bodies: Deception, Helping and
Profiteering in Human Trafficking along the Thai-Lao Border, 34 aSian STUD. rev. 221-9 (2010); N. Farrelly,
Exploitation and Escape Journey across the Burma-Thailand Frontier, in Labor MiGraTion anD hUMan TrafficKinG in
SoUTheaST aSia 131 (M. Ford et al. eds., 2012).
20 N. Jiyoung Bang, Casting a Wide Net to Catch the Big Fish: A Comprehensive Initiative to Reduce Human Trafficking
in the Global Seafood Chain, 17 U. pa. j. L. & Soc. chanGe 221 (2014).
21 H. Shamir, A Labor Paradigm in Human Trafficking, 60 UcLa L. rev. 88 (2012-13). [Emphasis added]
22 J. Chacon, Misery and Myopia: Understanding the Failure of the U.S Effort to Stop Human Trafficking, 74 forDhaM L.
rev. 2977 (2006).
Modern-day Slavery at Sea 79
XI JEAIL 1 (2018)
question in this regard.
The term modern-day slavery will be used interchangeably in this paper with
human trafcking or trafcking in persons. Although the formal, legal denition
used in international conventions and many domestic legislations is trafficking
in persons, human trafficking has been used widely by academic and popular
publications to refer to contemporary slavery practices.
II. Fishing Industry and Slavery
A. Why Do We Care?
Sex trafcking may connect to you directly only if you are a john or a consumer of
pornographic-related entertainment. However, labor slavery links to many aspects of
daily life even if you have pets, consume foods such as chocolate and seafood, drink
coffee or tea, or own particular clothing brands or electronics.
23
The global economy
necessitates that capital move to places where the cost of production can be reduced
to a very low point. Sophisticated chains of production mean that many companies
are unaware or unwilling to acknowledge that, for example, the tin used in most
electronic products is shipped from the Indonesian island of Bangka, where massive
child exploitation occurs.
24
We never know that shrimp and other seafood or canned
pet food at the nearby supermarket are products of slavery and horrible human
suffering in Southeast Asia.
25
Although human trafcking exists in many different industries of Southeast Asian
countries, this paper will focus mainly on Thailands shing sector. Despite the fact
that many studies have been conducted on slavery in Southeast Asia in general, Thai
human trafcking in shing industry has been neglected. However, by focusing on
shing industry, in particular on shing vessels in Thailand, my paper actually covers
briey almost the whole region of Southeast Asia, not just Thailand. The classic trafc
23 For a complete list of products regarding forced labor and exploitation, see Anti-Slavery International, Product of
Slavery and Child Labor, available at http://www.antislavery.org/wp-content/uploads/2016/11/products_of_slavery_
and_child_labour_2016.pdf (last visited on Mar. 4, 2018). See also The US DepT. of Labor, supra note 1.
24 Indonesia is the second largest tin exporter. For details, see K. Hodal, Death Metal: Tin Mining in Indonesia, GUarDian,
Nov. 23, 2012, available at https://www.theguardian.com/environment/2012/nov/23/tin-mining-indonesia-bangka;
https://www.theguardian.com/environment/2013/jul/12/apple-tin-mining-bangka-island-iphone (all last visited on Mar.
4, 2018).
25 ap, supra note 11.
80 Zezen Z. Mutaqin
ow of source, transit, and destination take place in different countries, including
Cambodia, Myanmar, Laos, Thailand, Malaysia, and Indonesia. Concerning the
trafcking in shing industry, however, this ow may not be sufciently clear-cut to
t with the classic pattern.
26
Victims of slavery at sea might be recruited either in their
country origin, such as Myanmar, Cambodia or Laos, at seaports across the region,
or on the boats of registered ag states, where victims are transferred from one vessel
to another while at sea. The victims are treated like a soccer ball, kicked in and out of
harbors (transit) along territorial states, or transferred between the ag state vessels
(destination) to catch sh at sea across Southeast Asia and beyond.
27
This phenomenon has confused Southeast Asian leaders who should primarily
have jurisdiction and responsibility in handling trafcking cases on these vessels.
28
International law regulates that ag states have the right to exercise jurisdiction on
the boats. However, it is actually difcult and costly to enforce the law to the long-
haul shing vessels aoat far away from the ag states. More worse, many boats are
recently registered under ags of convenience (FOC)
29
like Panama, Belize, or the
Cayman Islands to escape any criminal liability.
30
Thailand is the third biggest exporter of seafood products, with more than USD 7
billion in export value in 2011, reaching mostly the US (around USD 1.6 billion export
values in 2013) and European markets (Euro 835.5 million).
31
This means that, if you
buy canned pet food or any seafood products from any store in the US or Europe,
most of them would be coming from the Thai fishing industry. Unfortunately, the
survival of this sector depends on an illicit collaboration of unscrupulous business
owners, transnational trafcker networks, and corrupt government ofcials.
32
Since
2010, several international organizations like the UNIAP Project, ILO, Human Rights
Watch, EJF, and Greenpeace have published investigative reports about the Thai
shing industry, but these have circulated mainly among human rights activists and
26 UNODC, supra note 6, at 42.
27 Greenpeace, supra note 9.
28 UNODC, supra note 6, at 42.
29 FOC is the term to identify individual flags state that becomes a safe haven for ship owners due to the fact that those
countries have neither ability nor willingness to enforce the law or provide the mechanism to conceal the real beneficial
owners of the ships. See A. coUper, fiSherS anD pLUnDererS ThefT, SLavery anD vioLence aT Sea 78-81 & 95-98
(2015).
30 UNODC, supra note 6, at 18-9. See also M. Giani & W. SiMon, The chanGinG naTUre of hiGh SeaS fiShinG (2005),
available at http://assets.wwf.org.uk/downloads/flagsofconvenience.pdf (last visited on Apr. 8, 2018).
31 EFJ, The conTinUeD pLiGhT of TrafficKeD MiGranTS, supra note 14. See also fao, The STaTe of fiSherieS anD
aqUacULTUre 71 (2012); AP, supra note 11, at 16.
32 ejf, Slavery at Sea, supra note 10.
Modern-day Slavery at Sea 81
XI JEAIL 1 (2018)
never attracted wide attention.
33
The Thai shing industry relies partly on 200,000 foreign migrants working on
fishing boats and another hundred thousand in the processing facilities onshore.
34
The most egregious abuses of these workers occur on long-haul shing vessels, on
which victims are forced to work for weeks, months, even years at sea, for almost
24 hours a day in complete isolation and with no way to escape. Many of them, like
those who are from Rakhine State (Rohingya), escape the agony of persecution in
their place of origin, but are then re-trapped by traffickers and sold to the fishing
boats as slaves.
35
Refusal to work leads to beating and even torture on boats on the
high sea. One victim testied that he saw 20 people died in front of him, one of whom
was tied by his legs and hands to the bows of four boats that pulled him apart at sea.
36
No one knew what happened on these boats for years, until a lengthy investigative
report published by the AP in 2015 uncovered the brutal life conditions on these
fishing vessels.
37
Almost all international media featured the case of slavery in the
Thai shing industry in their headlines following the initial AP report.
This story had a signicant impact. More than 2,000 slaves, mostly Burmese who
worked for the Thai vessels, have been rescued and freed from several remote islands
of eastern Indonesia. When freed, some of them were locked inside the Benjina
Fishing Company compound for refusing to go back to work.
38
Others have escaped
from the boats and hid themselves inside the islands; they were isolated from the
outside world for years. A dozen alleged trafckers were arrested both in Indonesia
and Thailand. The Indonesian government immediately enforced a suspension and
moratorium on foreign fishing vessels. Meanwhile, in the US, President Obama
signed House Resolution 644, the Trade Facilitation and Trade Enforcement Act of
2015, which bans the US import of goods allegedly produced by slavery.
39
33 For details, see supra notes 5-10.
34 For details on alleged trafficking in the seafood processing plants, see iLo, The Mekong Challenge, supra note 7.
35 E. Stoakes et al., Sold from a Jungle Camp to Thailand’s Fishing Industry: ‘I Saw 13 People Die’ GUarDian, July 20,
2015, available at https://www.theguardian.com/global-development/2015/jul/20/sold-from-jungle-camp-thailand-
fishing-industry-trafficking (last visited on Mar. 4, 2018).
36 Id.
37 ap, supra note 11.
38 E. Htusan & M. Mason, More than 2,000 enslaved fishermen rescued in 6 months, ap, Sept. 17, 2015, available at
http://www.ap.org/explore/seafood-from-slaves/more-than-2,000-enslaved-fishermen-rescued-in-6-months.html (last
visited on Mar. 4, 2018).
39 ap, supra note 11.
82 Zezen Z. Mutaqin
B. Modus Operandi
Overshing, illegal shing as well as the depletion of sh at sea near Thai shorelines
have forced shing vessels to go further out to the high seas, reaching remote corners
to nd new stocks of sh. Consequently, they have to spend longer periods at sea and
pay higher logistical costs amid a bitter competition on the global market.
40
Moreover,
due to the nature of shing which requires workers to spend long period in harsh
conditions at sea, the Thai shing sector has suffered a severe labor shortage, as high
as 50,000 workers.
41
To meet this demand as well as reduce the cost of production,
many vessels owners turn to trafficking networks to acquire cheap or even free
labor.
42
Many tragedies of modern-day slavery start with the extreme deprivation of
human beings because of poverty, political conflicts, or other difficulties in their
countries of origin. Their desire to seek a better life forces them to go somewhere
else. What happens in Southeast Asia is not unique. In fact, it follows general pattern
of slavery. Human trafficking can be understood as a process which includes four
phases:
43
illicit recruitment, transportation from the place of origin, exploitation
(during which the victims are forced into labor or sexual servitude), and laundering
the criminal proceeds.
44
The first three phases describe the process of trafficking
itself, while the last process leads us to understand that the crime of trafcking must
be seen comprehensively in connection with other separate but connected crimes,
such as people and weapons smuggling. For this reason, the UN Protocol to Prevent,
Suppress and Punish Trafcking in Persons, Especially Women and Children of 2000
(hereinafter Palermo protocol),
45
the Smuggling of Migrants protocol,
46
and the UN
Firearms protocol
47
are supplements to the UN Convention against Transnational
40 S. robinSon, TrafficKeD: hUMan riGhTS abUSeS, in SeafooD inDUSTry 12 (2013), available at file:///C:/Users/USER/
Downloads/fishwise_human_rights_seafood_white_paper_nov_2013%20(1).pdf (last visited on Apr. 8, 2018). See also
ejf, Slavery at Sea, supra note 10, at 8-10.
41 UnoDc, supra note 6, at 28.
42 fiShWiSe, supra note 40, at 8-10.
43 UNODC, supra note 6, at 26. See also UnoDc, TrafficKinG in perSon: GLobaL paTTern 57 (2006), available at http://
www.un.org/esa/population/migration/turin/Turin_Statements/KANGASPUNTA.pdf (last visited on Apr. 8, 2018).
44 Id.
45 The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 2000, available
at https://www.osce.org/odihr/19223?download=true (last visited on Apr. 8, 2018).
46 Protocol against the Smuggling of Migrants by Land, Sea, and Air (2000), available at https://www.unodc.org/
documents/middleeastandnorthafrica/smuggling-migrants/SoM_Protocol_English.pdf (last visited on Apr. 8, 2018).
47 Protocol against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components and Ammunition
(2000), available at https://treaties.un.org/doc/source/RecentTexts/18-12_c_E.pdf (last visited on Apr. 8, 2018).
Modern-day Slavery at Sea 83
XI JEAIL 1 (2018)
Organized Crime of 2000.
48
To give flesh and blood to this theory, I will share the story of Mynt Naing,
one of the slaves who was freed from Benjina, an island in the Maluku province of
Indonesia, known as the Spice Island in Indonesia, after 22 years of slavery.
49
He
nally returned to his village in Myanmars Mon State in his middle age, as a stranger
or even a ghost, because most the villagers believed he had died a long time ago.
The story may end, but his family reminded him that 22 years ago when he was
fteen, his journey to slavery started with a smile and promises of a tall skinny man
offering him a hope to have a better life and a good job in Thailand. Mynt was easily
convinced. Together with several other young men, he was ready to start a new life
with great hope and promise.
After being easily smuggled through the border, Mynt and his fellow Burmese
were held for several weeks in a shelter with little food. In response to his confusion,
the traffickers told him that he had to wait until everything was arranged. Then
suddenly he was pushed by the trafckers to board a boat. He was sold to the sea.
50
Boat captains are the principal perpetrators in the chain of crime, since most of slaves
are received by them to be kept in their boats for labor. By giving the responsibility
to recruit workers to captains, business owners could easily limit their own criminal
liability.
51
Mynt worked day and night, almost 24 hours a day, for a salary USD 10 per
month or nothing at all. All documents like seafarer books, which were accepted as
the entry permit for shermen in Indonesia, were faked and kept by the captain.
52
A slightly different pattern of trafficking was shared by Husein, who was
trafcked from the Myanmars Rakhine State, a province where around one million
ethnic Rohingyas are experiencing state and communal persecution and extreme
deprivation. While Mynts habitual residence is not too far from the border and the
trafckers could easily skirt him by land, Husein had to jump over a crowded boat
to reach the border. Most Rohingyas have to pay to smugglers before they can board
the boat, although, in some cases, they could jump on it and pay later. Once they
reached their destination, the laborers were kept in trafficking camps in southern
48 The United Nation Convention against Transnational Organized Crime 2000.
49 M. Mason, Myanmar fisherman goes home after 22 years as a slave, ap, July 1, 2015, available at http://www.ap.org/
explore/seafood-from-slaves/myanmar-fisherman-goes-home-after-22-years-as-a-slave.html (last visited on Mar. 4,
2018).
50 Id, at 59.
51 E. Stoakes et al., Revealed: How the Thai Fishing Industry Trafficks, Imprisons and Enslaves, GUarDian, July 20,
2015, available at https://www.theguardian.com/global-development/2015/jul/20/thai-fishing-industry-implicated-
enslavement-deaths-rohingya (last visited on Mar. 4, 2018).
52 ioM, supra note 5 at 7-8.
84 Zezen Z. Mutaqin
Thailand, either in Songkhla or Narathiwat provinces.
53
Those who already paid their
transportation cost could immediately be sold (transferred) again to business sectors
like agriculture, construction, and shing industries in Thailand and Malaysia, with
the traffickers normally receiving USD 1,000 per sale from the business owners.
Those who were unable to pay were abandoned to die, as indicated by the discovery
of mass graves in 2015.
III. Legal and Conceptual Reection
A. Trafcked or Smuggled?
The nature of modern-day slavery is very difficult to assess because it is hidden
behind walls of valid labor contracts or certain cultural practices.
54
In the context of
slavery at sea, the offences have been relatively hidden for decades because of at least
three factors: (1) slavery practices happen in complete isolation at sea; (2) shermen
are reluctant to see themselves as victims of human trafcking (most of them see this
as part of their jobs risks); and (3) government ofcials do not regard these criminal
acts as human trafcking.
55
If putting slavery at the end of a continuum of hardship in working conditions,
how we can draw the line in between mere hardship in labor conditions and slavery?
Furthermore, since most cases of human trafficking are transnational involving
foreign migrants, how we can draw the line between migrant smuggling and human
trafficking? Legally and conceptually, it has been demarcated as specified in two
different international conventions: the so-called Palermo protocol and the Smuggling
protocols. However, these practices are actually diffuse, fluid, and dynamic and
cannot be differentiated easily.
56
The Palermo protocol denes human trafcking as:
53 Human Right Watch, Mass Graves of Rohingya Found in Trafficking Camp, May 1, 2015, available at https://www.
hrw.org/news/2015/05/01/thailand-mass-graves-rohingya-found-trafficking-camp (last visited on Mar. 4, 2018).
Southern Thailand especially in 4 provinces (Songkhla, Yala, Narathiwat, and Pattani) are a conflict area in which
Barisan Revolusi National - National Liberation Front - of Malay people has demanded independence since the 1950s.
This makes the trafficking, smuggling, and conflict situation mix all together. The trafficking camp built in the conflict
area indicate that the traffickers can safely operate their offenses.
54 TIP Report 2015, at 20. For details, see R. Plant, What does it mean to be a slave in the 21st century?, GUarDian,
Apr. 3, 2013, available at https://www.theguardian.com/global-development/poverty-matters/2013/apr/03/slave-21st-
century (last visited on Apr. 8, 2018).
55 UNODC, supra note 6.
56 Chacon, supra note 22, at 2986.
Modern-day Slavery at Sea 85
XI JEAIL 1 (2018)
… the recruitment, transportation, transfer, harboring or receipt of persons, by means of
the threat or use of force or other forms of coercion, of abduction, of fraud, of deception,
of the abuse of power or of a position of vulnerability or of the giving or receiving of
payments or benets to achieve the consent of a person having control over another
person, for the purpose of exploitation. Exploitation shall include, at a minimum, the
exploitation of the prostitution of others or other forms of sexual exploitation, forced
labor or services, slavery or practices similar to slavery, servitude or the removal of
organs…
57
Such a sophisticated legal definition can be classified into three elements as:
action (harboring, transferring, receiving, transportation, and recruitment); means
(coercion, abduction, fraud, deceit, deception, abuse of power, abuse of a position of
vulnerability, and buying or selling control of a person); and purpose (exploitation of
prostitution, sexual exploitation, forced labor, servitude, slavery, practices similar to
slavery, slavery-like condition, and removal of organs).
58
Although this has a close connection with smuggling crimes, normatively the
line can be drawn, as smuggling is defined as: …the procurement, in order to
obtain, directly or indirectly, a financial or other material benefits, of the illegal
entry of a person into a State Party of which the person is not a national or a
permanent resident.
59
Trafficking offenses have two essential ingredients, which
are exploitation and coercion. Similarly, smuggling offenses are also composed
of two basic elements: illegal border crossing and the receipt of a material benet by
smugglers.
60
From the above two definitions, we can determine several differences between
human trafficking and smuggling: (1) smuggling does not require coercion and
deception as a voluntary act, while human trafcking needs compulsion; (2) the role
of the smuggler ends once victims reach their destination, while human trafcking
can lead to subsequent exploitation; (3) smuggling requires crossing an international
border, while human trafficking can happen domestically;
61
and (4) smuggling
necessarily involves illegal entry to a foreign state, while victims of human trafcking
can enter a given state both legally and illegally. Just as it is difcult to make a clear
distinction between prostitution and sexual exploitation, however, so does the line
57 Palermo Protocol art. 3(a).
58 a. GaLLaGher, The inTernaTionaL LaW of hUMan TrafficKinG 25-34 (2010). [Emphasis added]
59 Smuggling of Migrants Protocol art. 3(a).
60 J. Bhabha, Trafficking, Smuggling and Human Rights, MiGraTion inforMaTion SoUrce, Mar. 1, 2005, available at
http://www.migrationpolicy.org/article/trafficking-smuggling-and-human-rights (last visited on Mar. 4, 2018).
61 oboKaTa, supra note 17, at 20-1.
86 Zezen Z. Mutaqin
blur between trafcking and smuggling, especially in the transnational context. It is
easier to identify smuggling offenders than trafckers, since proving the existence of
elements like exploitation and coercion requires a deeper and subtler investigation.
This point of view is commonly found among government officials who are
responsible for enforcing the law both in Thailand and elsewhere. Before 2008, for
example, almost no men have ever been identied as victims of human trafcking.
Thai law considered victims of slavery as exclusively women and girls, especially
in the sex industry, while men were seen as victims of smuggling.
62
Only since
the enactment of the Anti-Trafficking in Persons Act 2008, labor trafficking has
been recognized as a crime in Thailand.
63
In 2012, for example, law enforcement
agencies inspected 54,090 workplaces, and found thousands of indications of human
trafcking, but only two cases were recognized as forced labor, for which no one was
charged.
64
In Kantang, where 14 Burmese slaves were freed from a boat in March
2013, the crew master was the only one who charged with an offense, harboring
undocumented migrants, and sentenced to 3.5 months in prison. Any indictment
related to forced labor and human trafficking was evaded, and no other persons
were charged. The police did not even investigate the boats and pier owner.
65
All
of this occurred because law enforcers in Southeast Asia generally, and in Thailand
particularly, have seen human trafcking as identical to sexual exploitation.
To some extent, the proximity of human trafcking with the sexual exploitation
and female victims is understandable bearing in mind that four human trafcking
laws and treaties in early modern time, were historically enacted to prevent
womens trafficking for sexual exploitation. The International Agreement for the
Suppression of the White Slave Traffic 1904 was ratified by European countries to
prevent the procurement and transportation of white women in Europe for sexual
exploitation.
66
White slavery initially referred to female factories in England, but is
now used to describe the slavery of white women for prostitution. The International
Convention for the Suppression of the White Slave Trafc 1910 echoed the previous
agreement.
67
However, it emphasized the state responsibility to punish offenders with
a harsher sentence and urged to suppress the crime. The International Convention for
62 iLo, Employment Practices and Working Conditions in Thailand’s Fishing Sector, supra note 7, at 31.
63 Id.
64 ejf, Slavery at Sea, supra note 10, at 18.
65 Id.
66 The International Agreement for the Suppression of the White Slave Traffic, May 18, 1904, 35 Stat. 1979, 1 L.N.T.S.
83, entered into force on July 18, 1905.
67 The International Convention for the Suppression of the White Slave Traffic, May 4, 1910, 53 Stat. 1951, U.N.T.S. 98,
at 101, entered into force on Aug. 14, 1951.
Modern-day Slavery at Sea 87
XI JEAIL 1 (2018)
Suppression of the Trafc in Women and Children 1921 was another treaty similar
to the previous one,
68
but it stipulated articles to deal with prostitution and sexual
exploitation as important parts of trafficking.
69
The major difference was that the
1921 Convention does not use the term of white slave, indicating that slavery could
happen to any race. The International Convention for the Suppression of the Trafc in
Women of Full Age 1933 stipulates the same language and denition as the previous
convention, mainly focusing on prostitution and sexual exploitation.
70
Meanwhile, the Convention for the Suppression of the Traffic in Persons and
the Exploitation of the Prostitution of Others 1949 marked the consolidation of
all previous treaties.
71
This Convention recognizes men and boys to be victims of
trafcking with gender-neutral provisions. As can be seen in the Palermo protocol,
however, the gravity of the law still mainly emphasizes the eradication and
prevention of human trafcking of women and girls. This, to a great extent, has given
a strong impression to state parties and law enforcers that their main focus is on
women trafcking, ignoring the possibility that slavery happens in other sectors and
victimizes both women and men.
72
The UNODC Global Report on Trafficking 2009 describes three reasons why
labor trafficking is less visible in comparison to sex trafficking for decades.
73
First,
the problem of legislation, in which for many years forced labor was excluded from
trafficking offenses. Second, the general assumption among government officials
and the general population that human trafficking is synonymous with sexual
exploitation. Third, the visibility bias, in which most labor trafcking is hidden and
in isolation (plantation, construction, and sheries are good examples of how labor
slavery is almost entirely hidden).
74
In addition, the US foreign policy under Bush administration contributed to the
situation. From 2001 to 2008, TIP Reports, annually measured the implementation
of anti-trafficking laws globally, but they were conflated with prostitution due to
the strong lobby of Evangelical Christians, radical feminists, and neo-conservative
68 The International Convention for the Suppression of the Traffic in Women and Children, Sept. 30, 1921. L.N.T.S. 9, at
415, entered into force on June 15, 1922.
69 Id. §§ 6 & 7.
70 The International Convention for the Suppression of the Traffic in Women of Full Age, Oct. 11, 1933. L.N.T.S. 150, at
431, entered into force on Aug. 24, 1934.
71 The Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, Mar.
21, 1950. U.N.T.S. 96, at 271, entered into force July 25, 1951.
72 Shamir, supra note 21, at 88. See also UnoDc, GLobaL reporT on TrafficKinG in perSonS 51 (2009), available at
http://www.unodc.org/documents/human-trafficking/Global_Report_on_TIP.pdf (last visited on Apr. 8, 2018).
73 UNODC, id.
74 Id.
88 Zezen Z. Mutaqin
groups. Only after new staff were installed in the State Departments Trafcking in
Persons Office in 2006, TIP Report included labor trafficking and slavery in other
sectors like plantation, mining, and the shing industry.
75
B. Domestic and Regional Regulations
The rise of global awareness to combat human trafficking in the last decade could
not be separated from two primary legal instruments: The Palermo protocol and
the US Victims of Trafficking and Violence Protection Act of 2000 (TVPA).
76
The
Palermo protocol has been ratified by 177 parties as of April 2018.
77
Because of its
wide acceptance, the protocol has been binding the international community as
a whole like customary international law. Despite its shortcomings, the protocol
shows the international communitys will to ght against human trafcking as part
of transnational organized crime. It also provides comprehensive guidelines on how
to combat human trafficking based on the so-called 3P approach: Prosecute the
perpetrators, Protect the victims, and Prevent the crime from occurring again in the
future. [Emphasis added] Importantly, the Palermo protocol provides an agreed-
upon and broad denition of human trafcking, which was never achieved before
the adoption of the protocol in 2000.
78
TVPA, enacted weeks before the UN General Assembly adopted the Palermo
protocol in 2000, is considered the most comprehensive domestic legislation to
combat human trafficking in the world. More importantly, the TVPA has had an
impact beyond the US border, because it promulgates sanction mechanisms, for
example, by withdrawing the US foreign assistance for foreign countries failing to
meet the minimum standards for the elimination of trafficking.
79
The act gives a
mandate to the US President to establish the Interagency Task Force to Monitor and
Combat Trafcking, chaired by the Secretary of State. This task force is authorized by
TVPA to measure and evaluate the progress of combating human trafcking based
75 Shamir, supra note 21, at 92.
76 US Victims of Trafficking and Violence, Protection Act of 2000, H.R. 3234, Pub. L. No. 160-386 § 2A, 114 Stat. 1464
(2000), available at https://www.state.gov/j/tip/laws/61124.htm (last visited on Apr. 8, 2018).
77 See UN Treaty Collection, available at https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_
no=XVIII-12-a&chapter=18&clang=_en (last visited on Mar. 4, 2018).
78 L. Shoaps, Room for Improvement: Palermo Protocol and the Trafficking Victims Protection Act, 17 LeWiS & cLarK L.
rev. 934-5 (2013). See also a. GaLLaGher, The inTernaTionaL LaW of hUMan TrafficKinG 12-3 (2010).
79 J. Chuang, The United States As Global Sheriff: Using Unilateral Sanctions to Combat Human Trafficking, 27 Mich.
j. inT'L L. 439 (2005-06). For the minimum standards for the elimination of human trafficking, see TVPA § 108(a) 22
U.S.C. 7106.
Modern-day Slavery at Sea 89
XI JEAIL 1 (2018)
on the 3P approach, both in the US and globally.
80
As part of this evaluation, TVPA authorizes the publication TIP annually,
81
measuring each countrys effort to meet the minimum standards set by the Act.
Each country is grouped into three different tiers, from 1 to 3. Tier 1 shows a group
of countries that meet the minimum standard, while Tier 3 categorizes countries
whose governments neither fully comply with the minimum standard, nor make
any signicant effort to do so. In between are Tier 2 and the Tier 2 Watch List, listing
countries that do not fully comply with the standard but show a signicant effort to
comply.
82
Based on these two legal frameworks, we will see briefly how Thailand in
particular, and the ASEAN community as a regional organization, make an effort to
comply with the minimum standards of combating human trafcking.
C. Thailand
After four consecutive years (2010-13) on the Tier 2 Watch List, TIP Report
downgraded Thailand to Tier 3 in 2014 and 2015.
83
This means that: Thailand was
in the midst of a serious crisis of human trafcking; did not fully comply with the
minimum standards of the TVPA; and made no signicant efforts to combat human
trafcking that in various sectors from the sex industry to forced labor in its shing
industry.
84
To ensure fair judgment, let me now review Thai domestic laws regarding
human trafficking and the protection of labor, with particular attention to fishing
industry.
At least three legal domains are interlinked in the case of human trafficking in
fishing industry: regulation of fisheries, labor, and human trafficking. Thailand
has relatively comprehensive regulations for these three related sectors. Firstly, the
core regulation for the shing sector is The Fisheries Act, B. E. 2490 of 1947.
85
This
Act regulates the registration and licensing of fishing equipment, permits and the
requirement for shers, as well the type of shing techniques that are legally allowed.
80 Id. § 105(d) 22 U.S.C. 7103 (d).
81 Id. § 110(b) 22 U.S.C. 7107.
82 Tip Report 2015, at 45-7 (2015).
83 Id. at 330-1. TIP Report 2017 mentions Thailand in Tier 2 Watch List, improved slightly better than 2016. See TIP
Report 2017, at 387-91, available at https://www.state.gov/documents/organization/271345.pdf (last visited on Apr. 17,
2018).
84 Id.
85 Thai Fisheries Act 1947 (b.e. 2490), available at http://faolex.fao.org/docs/pdf/tha4931.pdf (last visited on Mar. 4,
2018).
90 Zezen Z. Mutaqin
Thai officials and other stakeholders like FAO and ILO generally agree that the
Fisheries Act is already out of date and must be revised.
86
It was enacted when the
Thailand sheries were still part of a traditional and artisanal industry, long before
Thailand became one of the biggest sh producers in the world. To cope with this
rapid development and to meet international pressure, the government prepared a
new Fisheries Act in 1999. After long debate and discussion, in 2014, the Draft was
submitted to the National Legislation Assembly and passed in 2015. This new Act
regulates sheries in three zones: Inland, Coasts, and High Seas. It aims to tackle the
problem of illegal unreported and unregulated shing (IUU) which has endangered
the sustainability of the fishing industry.
87
The 2014 Act not only regulates the
monitoring and surveillance of shing activities, but also promulgates the regulations
to eliminate all forms of forced labor and improve working conditions both in shing
vessels and seafood processing plants.
88
However, since the law has only recently
been passed, we are currently unable to judge its impact on the improvement of the
shing sector, including its inuence on eliminating human trafcking.
Secondly, with regards to labor rights, Thailand has enacted several regulations,
including the Labor Protection Act of 1998 and its amendments (2008 and 2010), the
Labor Relations Act of 1975, the Act on Establishment of Labor Courts and Labor
Court Procedures of 1979, the Social Security Act of 1990, and the Compensation
Act of 1994.
89
All of these regulations deal with common provisions in regulating
the relationship between employers and employees, such as minimum wage (300
THB/day nationally), working hours and leave conditions, and termination of
employment. Seeing the list of regulations, employees in Thailand are relatively well
protected. However, as most of the foreign migrants who work on the shing vessels
and in the seafood factories are recruited illegally, the majority of these workers are
unprotected. Most of the contracts between boat owners and the fishers are made
without any written documents. Due to the nature of working conditions at sea, most
of the employees do not have normal working hours, health insurance, and other
benets promulgated by the law.
90
Thirdly, following the ratification of the Palermo protocol in 2001, Thailand
86 ioM, supra note 5, at 9-10.
87 Thai Anti-Human Trafficking Action, The New Fisheries Act, Jan. 15, 2015, available at http://www.thaianti-
humantraffickingaction.org/Home/?p=457 (last visited on Mar. 4, 2018).
88 Business and Human Rights Resources Center, Highlights of Thailand’s new fisheries Legislation, Nov. 26, 2015,
available at https://business-humanrights.org/en/highlights-of-thailands-new-fisheries-legislation (last visited on Mar.
4, 2018).
89 Thai Anti-Human Trafficking Action, supra note 87.
90 ioM, supra note 5 at 9-11.
Modern-day Slavery at Sea 91
XI JEAIL 1 (2018)
enacted the Anti-Trafficking in Persons Act (ATIP) in 2008 (B.E 2251).
91
ATIP
mirrors the Palermo protocol. It contains 6 chapters covering general provisions
(Chapter 1), the establishment of the Anti-Trafficking Committee (Chapter 2),
promulgating powers and duties of ofcials (Chapter 3), the protection and assistance
of the victims of trafcking (Chapter 4), establishing a fund to combating trafcking
in persons (Chapter 5), and sanction and penalties (Chapter 6). In a more detailed
description than the Palermo protocol, Section 6 of ATIP 2008 denes trafcking as:
Whoever, for the purpose of exploitation, does any of the following acts: (1) procuring,
buying, selling, vending, bringing from or sending to, detaining or confining,
harboring, or receiving any person, by means of the threat or use of force, abduction,
fraud, deception, abuse of power, or of the giving money or benefits to achieve the
consent of a person having control over another person in allowing the offender to
exploit the person under his control; or (2) procuring, buying, selling, vending, bringing
from or sending to, detaining or conning, harboring, or receiving a child; is guilty of
trafcking in persons.
92
Before the enactment of this trafficking law, Thai law enforcement of trafficking
relied mainly on an outdated anti-trafficking law called the Trafficking in Women
and Girls Act of 1928, which, reflecting the older anti-trafficking mindset, solely
addressed combating the trafficking of women and girl for sexual exploitation.
93
ATIP, amendment of the 1928 Act, addresses trafficking in various sectors and in
gender-neutral terms. It severely penalizes offenders while also advocating the
protection of victims. Chapter 6 mentions that the offenders shall be liable to the
punishment of imprisonment from four years to ten years and fine from eight
thousand Bath to two hundred thousand Bath.
94
Furthermore, Section 54 lays down
that anyone who obstructs the process of investigation, inquiry, prosecution, and
proceedings of human trafficking cases shall be liable to a maximum of ten years
imprisonment.
95
Following the Palermo protocol and TVPA, ATIP 2008 also follows
the 3P (Prosecution, Protection, and Prevention) approach. Chapter 4 regulates
the protection and assistance of the victims of human trafcking by providing, for
example, food, shelter, medical treatment, psychological and mental rehabilitation,
91 Thailand Anti-Trafficking in Persons Act B.E 2551 (2008) [Thailand], 30 January 2008, available at http://www.
refworld.org/docid/4a546ab42.html (last visited on Apr. 18, 2018).
92 ATIP 2008, § 6.
93 oboKaTa, supra note 17, at 47-8.
94 ATIP 2008, § 52.
95 Id. § 54.
92 Zezen Z. Mutaqin
education, and compensation. It also obliges the authorities to provide safety,
especially during the process of legal proceedings, both for the victims and their
families.
96
Similar to the wording used by the Palermo protocol, however, ATIP
does not clearly oblige the government to assist the victims, for example, by saying:
The Ministry of Social Development and Human Security shall consider providing
assistance as appropriate…
97
In light of the regulations mentioned above, the question of law enforcement
becomes crucial for discussion. In most cases, the written law does not represent
reality due to the lack of enforcement. We can refer to several reports to judge
whether Thailand has sufciently enforced the law to meet the minimum standards
of combating and preventing human trafficking, especially in its fishing industry.
TIP Report is the primary source for evaluation. In addition, media reports as well as
academic articles are utilized to clarify the Report.
TIP Report indicates that, in the past eight years, Thailand failed to meet the
minimum standards to combat human trafcking.
98
It remains in between the Tier 2
Watch List and Tier 3. Of course, Thailand has made some efforts to curb trafcking,
including legalizing undocumented migrants, increasing the frequency of boat
inspections, and arresting some perpetrators. However, these efforts were far from
enough to meet the minimum standard, and seem to indicate an artificial gesture
without a genuine political will. TIP Reports 2014 and 2015 downgraded Thailand to
Tier 3 after several years right on the verge.
99
There are at least three reasons why Thailand has failed to curb human trafcking
and improve labor conditions in its shing industry.
100
First, the Thai government did
not have real political will. Despite the fact that the government has assigned high
officers to tackle those problems as: improving inspection mechanisms for vessels;
assimilating undocumented foreign migrants; and prosecuting trafcking cases, a real
impact on improving conditions is still unseen. TIP Report highlights the tendency of
symbolic gestures of the government without real concrete action, by stating: senior
ofcials regularly made public statements expressing their commitment to combating
96 Id. § 36.
97 Id. § 33. [Emphasis added]
98 Tip Report 2015, at 330-1.
99 Id. For details on a complete report, see EJF, Slavery at Sea, supra note 10.
100 Id. at 30-2. For details on the corruption and human trafficking in Thailand, see M. Sakdiyakorn & S. Vichitrananda,
Corruption, Human Trafficking and Human Rights: The Case of Forced Labor and Sexual Exploitation in Thailand,
NACC J. 54 (July 2010), available at https://www.nacc.go.th/images/journal/malinvisa.pdf (last visited on Mar. 4,
2018).
Modern-day Slavery at Sea 93
XI JEAIL 1 (2018)
trafcking, though these efforts did not always yield concrete results.
101
In addition,
the lack of competent interpreters in assisting victims either during the investigation
process or court hearings indicates inadequacy of the system to tackle trafcking.
102
Second, endemic corruption has seriously hindered law enforcement in curbing
modern-day slavery in Thailand.
103
Furthermore, in many ways, corruption helps
facilitate the mushrooming of human trafficking. Several TIP Reports from 2012
continuously urged the Thai government to tackle this issue seriously, because
corruption is rampant at every stage of human trafficking, from recruitment to
transportation and exploitation by employers. Thai immigration ofcers, police, and
military have been involved in this illicit misuse of entrusted power for their own
personal gain. The 2014 TIP Report states: Thai civilian and military ofcials proted
from the smuggling of Rohingya asylum seekers from Burma and Bangladesh ... and
were complicit in their sale into forced labor on fishing vessels.
104
Thai navy and
marine officials also allegedly towed boats loaded by migrants from Myanmar to
Thai coastal area and sold them to brokers, who then re-sold the victims to the shing
boats.
105
Thai police systematically removed Rohingyas from the detention facilities
and transported them to Southern Thailand. The middlemen brokered the selling of
the victims to trafckers as labor, either in jungle camps as cooks and guards, or on
the shing boats.
106
In fact, corruption is not a problem unique to Thailand. It happens everywhere,
oiling the wheels of human trafcking around the world. Using statistical correlation
tests between human trafficking and other factors like poverty, education, and
corruption, Zhang and Pineda have shown that corruption is the only consistent
causal factor for human trafcking.
107
They utilized TIP Reports (Tier 1 to 3) as the
variable for human trafcking, and the Corruption Perception Index (CPI index) of
Transparency International to measure corruption (1 to 10 index in which 1 shows
101 Tip Report 2013, available at http://www.state.gov/j/tip/rls/tiprpt/countries/2013/215633.htm (last visited on Mar. 4,
2018).
102 ejf, Slavery at Sea, supra note 10, at 21-2.
103 K. Hodal, Slavery and Trafficking Continue in Thai Fishing Industry, Claim Activists, GUarDian, Feb. 24, 2016,
available at https://www.theguardian.com/global-development/2016/feb/25/slavery-trafficking-thai-fishing-industry-
environmental-justice-foundation (last visited on Mar. 4, 2018). See also ejf, Slavery at Sea, supra note 10, at 24-5.
104 Tip Report 2014, available at http://www.state.gov/j/tip/rls/tiprpt/countries/2014/226832.htm (last visited on Mar. 4,
2018).
105 Id.
106 Id.
107 S. Zhang & S. Pineda, Corruption as a Casual Factor in Human Trafficking in orGaniSeD criMe: cULTUre MarKeT
anD poLicieS 41-53 (D. Siegel & H. Nelen eds., 2008).
94 Zezen Z. Mutaqin
the least corrupt while 10 the worst).
108
They also evaluated the correlation between
trafficking and poverty levels, using several variables like income per capita,
mortality rate, education, and life expectancy.
109
According to this research, poverty
is inconsistent with trafcking, considering that many countries on TIP Reports Tier
2 Watch List and Tier 3 are not poor countries. The only consistent variable correlated
to trafficking is corruption. The more corrupt a country is, the higher its human
trafcking rates are.
110
Lastly, concerning trafficking in fishing industry, the reluctance of business
owners to modernize their industry is a crucial factor influencing continued
trafficking. After a wave of trawl modernization in the 1960s supported by the
West German government, Thai fishing industry grew rapidly. Its marine capture
increased dramatically from 63,711 tons in 1960 to 2 million tons in the 1980s.
111
Because of unregulated practices and excessive captures, however, production started
to decline, which has forced boat owners to sail far away from the Gulf of Thailand
to Indonesian, African, and even Russian waters. Unfortunately, after more than
two decades, eet rejuvenation by more technologically-advanced equipment is not
on their agenda. To meet the minimum catch, business owners rely mainly on labor
forces easily recruited through trafcking networks and organized crime.
112
D. ASEAN
Since the problem of human trafcking is not unique to Thailand, it is important to
touch briey upon regional legal instruments and guidelines on human trafcking.
There is no particular regional instrument in dealing with trafficking in fishing
industry; it is rather considered as part of trafcking in general. In this regards, the
Bali Process on People Smuggling, Trafcking in Persons and related Transnational
Crime (hereinafter Bali Process) is considered a comprehensive regional instrument
dealing with this issue. With around 48 members, the Bali Process has effectively
raised the awareness of human trafcking problems in a wider region, from Vanuatu
to Iran. Because it deserves a separate deep discussion, however, this paper will focus
instead on the Association of the Southeast Asian Nations. (ASEAN)
113
108 Id.
109 Id.
110 Id. See also K. baLeS, UnDerSTanDinG GLobaL SLavery: a reaDer 15-6 (2005); K. Richards, The Trafficking of
Migrant Workers: What are the Links between Labor Trafficking and Corruption? 42 inTL MiGraTion 5 (2004).
111 ejf, Slavery at Sea, supra note 10, at 6-8.
112 Id. See also ejf, Slavery at Sea, supra note 10, at 32.
113 S. Kneebone, The Bali Process and Global Refugee Policy in the Asia-Pacific Region, 27 j. refUGee STUD. 596 (2014).
Modern-day Slavery at Sea 95
XI JEAIL 1 (2018)
Since the 1990s, the ASEAN member states have recognized the threat of human
trafcking, especially concerning women and girls as victims.
114
In 1997, three years
before the Palermo protocol was ratified, the ASEAN member states signed the
ASEAN Declaration on Transnational Crime, whose main concern was to confront
transnational crimes such as terrorism, illicit drug trafficking, arms smuggling,
money laundering, trafc in person and piracy.
115
This non-binding instrument has
encouraged its members to enhance regional cooperation through both bilateral and
multilateral channels in combating transnational crimes, including human trafcking.
In 2004, following the Palermo protocol, the ASEAN countries ratied the ASEAN
Declaration against Trafcking in Persons Particularly Women and Children.
116
Until
2015, this Declaration was recognized as the main legal instrument, although non-
binding, for member states to cooperate in combating human trafficking. Because
almost all the ASEAN legal instruments rely on a soft-law approach,
117
these
instruments and guidelines are not fully effective in eliminating trafcking. In short,
Kranrattanasuit said: These instruments are unequal in their approaches at gender
sensitivity, contain ambiguous and insufficient anti-human trafficking content,
lack trafficking victims protection, and exhibit no common anti-human trafficking
norms.
118
In spite of creating the ASEAN Inter-Governmental Commission on
Human Rights (AICHR), it has not established a monitoring and evaluation
mechanism in combating trafcking yet. This renders both the instrument and the
AICHR toothless. The 2004 Declaration was merely advice and encouragement
for member states to establish domestic mechanisms to combat human trafcking,
without a comprehensive regional approach.
119
In the wake of a shameful and grave humanitarian crisis in November 2015,
See also A. Klug, Enhancing Refugee Protection in the Asia-Pacific Region, 107 aM. Soc'y inT'L L. proc. 358 (2013).
114 See aSean reSponS e To Traffi cKinG in pe rSon 3 (2006), available at http://203.149.11.174/ewt_dl_link.
php?nid=1312 (last visited on Apr. 8, 2018).
115 See ASEAN Declaration on Transnational Crime 1997, available at http://asean.org/?static_post=asean-declaration-on-
transnational-crime-manila-20-december-1997 (last visited on Apr. 8, 2018).
116 See ASEAN Declaration against Trafficking in Person Particularly Women and Children 2004, available at http://
asean.org/asean-declaration-against-trafficking-in-persons-particularly-women-and-children-4 (last visited on Mar. 4,
2018).
117 In contrast to the ‘hard law’ approach, ‘soft law’ is generally regarded as “head without a body” mechanism without
binding force. See KranraTTanaSUiT, supra note 18, at 55. See also, e.g., A. D’Amato, Softness in International Law: A
Self-Serving Quest for New Legal Materials: A Reply to Jean d’Aspremont, 20 eUr. j. inT'L L. 897 (2009), available at
http://www.ejil.org/pdfs/19/5/1700.pdf (last visited on Apr. 4, 2018).
118 KranraTTanaSUiT, supra note 18, at 52.
119 For details on the deficiency of the ASEAN Instruments on Human Trafficking, see id. at 52-72. However,
Kranrattanasuit’s book was published before 2015 when the ASEAN was agreed on a new convention on human
trafficking.
96 Zezen Z. Mutaqin
thousands of refugees and migrants from Myanmar ooded neighboring countries
such like Thailand, Malaysia, and Indonesia. Then, the ASEAN member states took
a bold step by creating a historic ASEAN Convention and Plan of Action against
Trafcking in Persons Especially in Women and Children (ACTIP).
120
After nding
the mass grave of Rohingyas in the trafficking jungle camp in Thailand and wide
media coverage of slavery in various sectors, mainly shing industry, the leaders of
the member states nally realized that they would not be able to combat trafcking
individually, but collective action was needed. As opposed to the 2004 Declaration,
which was non-binding, ACTIP is a binding mechanism as a guideline for a
regional effort to combat human trafcking.
121
Following the Palermo protocols 3P
approach, ACTIP aims to combat and punish effectively trafckers, protect and assist
the victims with full respect for their human rights, and promote cooperation among
the ASEAN member states to meet these objectives.
122
Article 24 of ACTIP stipulates a
monitoring, reviewing, and reporting mechanism, authorized by the ASEAN Senior
Ofcials Meeting on Transnational Crime (SOMTC).
123
Nonetheless, there is a barrier to action: ACTIP and the Plan of Action would be
only eligible for implementation 30 days after being ratied by at least six member
countries.
124
In 2016, only three states, Singapore, Cambodia and Thailand, ratified
the Convention.
125
By March 2017, the ASEAN announced that ACTIP should be
ofcial after the nal ratication of Vietnam, Myanmar and the Philippines.
126
This
development promises a better pathway into combating human trafficking in the
region. For the time being, however, we have to wait and see if member states
implement this new legislation in real policy and action.
120 ASEAN Convention and Plan of Action against Trafficking in Persons Especially in Women and Children 2015
(ACTIP), available at http://www.asean.org/wp-content/uploads/2015/12/ACTIP.pdf (last visited on Mar. 4, 2018).
121 Id.
122 Id. arts. 23-24.
123 Id.
124 Id. art. 29.
125 L. McCallum, One Year Later: ASEAN Anti-Trafficking Action Plan Still Dormant, Human Trafficking Center, Sept.
16, 2016, available at http://humantraffickingcenter.org/one-year-later-asean-anti-trafficking-action-plan-still-dormant
(last visited on Mar. 4, 2018).
126 ASEAN Secretariat, ASEAN Welcomes Entry into Force of ACTIP, Mar. 8, 2017, available at http://asean.org/asean-
welcomes-entry-into-force-of-actip (last visited on Mar. 5, 2018).
Modern-day Slavery at Sea 97
XI JEAIL 1 (2018)
IV. Conclusion
Modern slavery at sea was unseen and ignored for decades because it was isolated
and uncontrolled. Due to the conation of human trafcking with the sex industry
and women victims, trafcked persons in other sectors like shing industry have not
been easily regarded as victims of slavery. This has also caused a lack of awareness
among state officials regarding slavery in many other sectors out of sex industry,
where women and men are equally vulnerable.
My paper has discussed the horrific conditions of slavery at sea with special
references to human trafficking cases in Thai fishing industry. The victims of
trafcking who are recruited by deception, fraud, and violence could spend months
and years at sea in brutal conditions without any opportunity to escape. This type
of trafficking is reminiscent of pre-modern slavery, an inhumane practice that we
thought disappeared hundreds of years ago.
Combating human trafficking does not simply mean enacting regulation and
signing international conventions. Rather, law enforcement, eradication of corruption,
socialization, awareness of the crime among state ofcials, as well as, importantly,
political will should be intermingled supporting each other in combating human
trafcking.
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  • One Year Later: ASEAN Anti-Trafficking Action Plan Still Dormant, Human Trafficking Center
    • L Mccallum
    L. McCallum, One Year Later: ASEAN Anti-Trafficking Action Plan Still Dormant, Human Trafficking Center, Sept. 16, 2016, available at http://humantraffickingcenter.org/one-year-later-asean-anti-trafficking-action-plan-still-dormant (last visited on Mar. 4, 2018).
  • ASEAN Welcomes Entry into Force of ACTIP
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    ASEAN Secretariat, ASEAN Welcomes Entry into Force of ACTIP, Mar. 8, 2017, available at http://asean.org/aseanwelcomes-entry-into-force-of-actip (last visited on Mar. 5, 2018).
  • Exploitation and Escape Journey across the Burma-Thailand Frontier
    • N Farrelly
    N. Farrelly, Exploitation and Escape Journey across the Burma-Thailand Frontier, in Labor MiGraTion anD hUMan TrafficKinG in SoUTheaST aSia 131 (M. Ford et al. eds., 2012).
  • Casting a Wide Net to Catch the Big Fish: A Comprehensive Initiative to Reduce Human Trafficking in the Global Seafood Chain, 17 U
    • N Jiyoung Bang
    N. Jiyoung Bang, Casting a Wide Net to Catch the Big Fish: A Comprehensive Initiative to Reduce Human Trafficking in the Global Seafood Chain, 17 U. pa. j. L. & Soc. chanGe 221 (2014).
  • Room for Improvement: Palermo Protocol and the Trafficking Victims Protection Act
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  • For details on a complete report, see EJF, Slavery at Sea, supra note 10
    • Id
    Id. For details on a complete report, see EJF, Slavery at Sea, supra note 10.
  • Article
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