I.          Introduction

The US Department of State exercised waiver provisions included in the Trafficking Victims Protection Act (TVPA) reauthorization to avoid downgrading Thailand to Tier III in the 2013 Trafficking in Persons Report (JTIP), noting that the Government of Thailand was not in compliance with minimum standards to eliminate trafficking in that it failed to, “adequately regulate brokers, reduce the high costs associated with registration, or allow registered migrants to change employers,” and “pervasive trafficking-related corruption and weak interagency coordination continued to impede progress in combating trafficking.” In 2014, the Department of State will no longer have waiver authority and will have to place Thailand in Tier 2 or Tier 3.. A Tier 3 placement for Thailand is both an accurate representation of the Thai Government’s current level of commitment to addressing human trafficking and an important message that fundamental legal reforms are required.

The situation in 2014 has changed little. Immigration policies and labor laws that leave migrant workers vulnerable to human trafficking underpin a system of exploitation among Thailand’s more than 2 million migrant workers; rampant corruption still fuels de-facto state support of human trafficking; and inconsistent enforcement of the human trafficking law passed in 2008 limits the options for victims of trafficking seeking assistance. Many of the regulatory changes recommended in the 2013 TIP Report have been requested by NGOs, governments and the International Labor Organization for years, but the Thai government’s vested interest in maintaining a steady flow of cheap labor to fill the worker shortage in its export-driven economy continues to take priority over the labor and immigration law reforms needed to reduce the human trafficking among migrant workers. Though the Thai Government has a written plan to combat human trafficking, it addresses primarily surface issues without getting at the underlying causes fueling trafficking within migrant worker populations.

An area of particular concern is Thailand’s seafood industry, where the International Labor Organization notes, “The implementation of policies for prevention and suppression of forced labor and trafficking in the fishing sector remain insufficient.”[1] These comments will include many examples from the seafood industry, which has been widely researched and covered in international press, as an illustrative example of the trafficking problem affecting Thailand’s migrant workforce. It’s important to note, however, that trafficking cases have also been documented across industries reliant on migrant labor, including agriculture, domestic work, and light manufacturing, including in the garment industry.

II.      Stateless Rohingya Migrants

A Reuters report published December 4, 2013, showed the extent to which the Thai government is complicit in human trafficking. The article uncovered evidence of a state policy to sell Rohingya refugees to human traffickers[2]. Violence against the Muslim ethnic Rohingya people in Burma has caused 140,000 people to flee their homes in what is one of the largest mass movements of people by boat since the Vietnam War. They are largely bound for Malaysia, a Muslim country with an already sizeable Rohingya population, but must first cross Thailand. By October 2013, more than 2,000 Rohingya had been arrested and were living in cramped, increasingly desperate detention centers. Neither Burma nor Malaysia would accept the refugees. So an alternative strategy, one official called it “option two,” was developed.

The refugees were told they were being sent back to Burma, but most never made it. Instead, Thai authorities sold at least some of them to human traffickers — those interviewed in the Reuters piece were purchased for $350 each — and ended up in camps deep in the jungle on the border with Malaysia. Traffickers forced the refugees to call relatives in Malaysia and Thailand and try to extort $2,000 in ransom money for their return. In the meantime, the inmates were regularly beaten and tortured. Some who tried to escape were killed. Those who could not find a relative to pay the ransom were reportedly sold to fishing boats or farms. By December, the number of Rohingya refugees still in Thai detention centers had dropped from 2,058 to 154. It is unknown how many of those who had disappeared from detention centers were sold, or what happened to most of them after they left.

On January 27, after pressure from both the United States Government and United Nations, Thai authorities raided one of the trafficking camps, taking into custody 531 men, women and children, not all of whom were Rohingya. The Thai Government has said it will conduct more raids against camps as well. As of yet, however, not a single Thai authority has been arrested for participating in the scheme. Nor is this an isolated event. Thai officials raided a similar trafficking camp of Rohingya migrants on January 9, 2013. Nine people were charged with human trafficking in that case, including two government officials, but none of the charges led to convictions.

III.    Criminal Defamation

Thai government officials are taking active steps to hide the continued abuses by prosecuting journalists and activist for their work uncovering the abuses. The only people being prosecuted so far in the Rohingya trafficking case above are two journalists who covered the story. The Royal Thai Navy has filed criminal defamation charges against Alan Morison and Chutima Sidasathian of the news site Phuketwan for their coverage of the trafficking case. They face five years in jail and up to $3,300 in fines if convicted.

Another criminal defamation case is also pending against activist Andy Hall for his research into forced labor and other labor rights abuses at Natural Fruit Company, which produces pineapple products. Hall conducted interviews with workers at the company and uncovered a range of serious abuses, including document confiscation, unlawfully low wages, poor working conditions and child labor. The findings were published in a report for the Finnish NGO FinnWatch, titled, “Cheap Has a High Price.” If convicted, Hall could face up to two years in prison, and fines totaling $10 million. His case has been ongoing since April 2013, and Hall was forced to relocate to Burma as a result of the case.

Criminal defamation laws have a chilling effect on people trying to expose and remediate human trafficking. If the Thai government intends to take human trafficking seriously, it cannot allow such cases to move forward and must punish those who engage in trafficking, not those who make it public.

IV.    Migrant Labor in Thailand

At the end of 2013, there were an estimated 3-4 million migrant workers in Thailand, around 2 million of whom are legally registered to work[3]. The majority of these workers, 80 percent, came from Burma. Since 2009, workers have been able to enter the country legally through a process developed in bilateral Memos of Understanding (Mou) between Thailand and neighboring countries (Burma, Cambodia and Laos). Workers who entered the country illegally can also register through the National Verification System to obtain legal working papers. Nearly 400,000 migrant workers completed the registration process between January and July of 2013.[4]

Unfortunately, these gains in registration may be wiped out by the inefficiencies of the registration process. Workers are only granted temporary documents, the terms of which change frequently in myriad resolutions and policy announcements. The latest agreement between Burma and Thailand, signed in 2009, limited the validity of migrant workers’ passports and visas to four years, and required workers to return to Burma for three years before applying again. This system is impractical for workers and employers alike, and the Thai government pledged to reduce the amount of time needed out of country to as little as one month or one day, and agreed to establish service centers in partnership with the Burmese government along the border to facilitate re-registration. However, the government failed to deliver on either of these promises and at least 400,000 workers now find themselves again unregistered, with expired documents and no direction from the Government about how to renew them.[5] These delays could leave legal migrant workers open to increased risks of human trafficking. The ILO found that even in the fishing sector, which is known for problems with trafficking, workers with documents were less likely to be in forced labor than those without documents.[6] And already, police have arrested some workers for the expiration of their visa, although they had no fault in it expiring. Others have been fired from legitimate employment and forced into informal work[7].

Registration programs were meant to provide an alternative to the extensive, highly abusive system of labor brokers, who often trap their clients in systems of debt bondage and control migrant workers through deception, physical violence, and threats to turn migrant workers over to authorities.[8] Brokers still regularly sell workers to fishing vessels[9] and a recent FinnWatch report indicates brokers are also trafficking workers into pineapple processing.[10] However, the process is so complicated that migrant workers must still rely on brokers to fill in the application, and there are indications that it has merely formalized the broker system into a higher level of government corruption.[11] The process should cost 500-600 baht to complete. But in actuality, workers must engage outside agents, who charge several times that amount, to move the process forward and make sure the paperwork is completed.

The limitations of the MoU system were tragically demonstrated at the Phattanna Seafood Factory in Songkhla Province.[12] The case was uncovered in April 2012, when the workers went on strike because conditions were so intolerable. The factory employed about 2,000 employs, 400 from Burma and 1,500 from Cambodia. Nearly all arrived through the MoU registration process. Workers paid between $400 and $700 before their arrival to a recruiter associated with Phattanna, thinking that was all they would have to pay. When they arrived, however, they were told they would be responsible for an additional $800 in charges, which would be deducted from their wages, and that the factory would hold their identification documents and prevent them from leaving until they had paid the full amount. Phattanna made additional deductions from their checks as well, without any explanation. The factory forced workers to live in company housing and take company transportation to work. The company failed to pay the minimum wage. This is an extreme case, but illustrative of how employers and brokers can work together through the MoU process to exploit workers.

ILRF conducted interviews with a group of five Burmese migrant workers at a seafood processing plant on a recent trip to Mahachai in January 2014. Although the group is too small to be considered representative, they were typical for registered Burmese migrant workers in Thailand. All of the workers had come through the MoU process, three of them with debt. They paid 6,000 baht up front to the agency in Burma, and were required to pay the remaining 10,000 with monthly salary deductions of 1,000 baht. None of three complained about the conditions in the factory, and all three were in possession of their documents. But one did say that if there were a problem in the factory, she would not feel free to leave until her debt was paid, indicating the system still fosters situations of debt bondage.

Labor brokers are well connected to both the employers and the officials responsible for registering workers, and workers are left dependent on all three for legal status. The gaps in administration that occurred in the last year have only made the situation worse. “Once again… workers are being forced, as a result of poor and incompetent migration policy management and corruption, to spend significant amounts of money in their quest to get visas and work permit,” Aung Kyaw, president of the Migrant Workers Rights Network (MWRN) told Irrawady magazine.[13] “The abuse of migrant workers by brokers and agencies, working closely with Myanmar and Thai officials, is now significantly increasing.” The Thai government must urgently reform the recruitment system, require labor brokers to be licensed and registered, define limits on how much can be charged for placement services, and ensure that employers rather than workers are responsible for paying any fees associated with worker placement.

V.        Thai labor law

Similarly to the registration system, Thai labor law leaves migrant workers vulnerable by giving near complete control to employers. Migrant workers cannot apply for work permits themselves. Their employer must apply on their behalf, and the permit binds the worker to that employer. A worker can only apply to transfer to a new job if he can prove the employer has gone bankrupt, has violated the worker’s rights according to the labor law, or the employer agrees to terminate the worker and sign a transfer form allowing him to go to another employer.[14] In practice, proving any of these to the Ministry of Labor is not feasible for most migrant workers, and they must convince the employer to complete the work transfer form to keep their legal status. Often, workers are charged a bribe for this form. If the employer initiates the termination, a worker has only seven days to find a new employer before her status lapses and she has to complete the entire registration process all over again. Faced with the possibility of arrest and deportation, workers often find themselves unable to leave an employer, even in the face of severe abuse, a legal gap that enables forced labor in migrant-dominated industries.

In many cases, the employer prevents a worker from registering to avoid paying the fees, and to keep workers vulnerable, or charges workers for the permit and never actually completes the registration process. This is common practice on fishing boats, where the difficult working conditions make it hard to keep workers of any nationality. A survey by the International Labour Organization of fishermen across four provincesfound that employers prevented nearly 17% of the workers sampled from registering. [15] In follow-up interviews, employers complained that workers with permits were more likely to seek employment in other sectors, a notion supported by the fact that 14% of workers cited lack of documentation as their primary reason for working on fishing boats. Interestingly, the study also cited that 44% of workers thought they were already legally registered, even though they were not. The ILO study did not ask these workers if they had paid an employer to register them. Research by ILRF and MWRN in 2012 documented workers paying nearly $200 in registration fees and receiving falsified documents in return at a shrimp processing plant,[16] and similar practices have been documented in several additional studies.

An important right to which all migrant workers are entitled under Thai law is a written document outlining terms of employment in a language the worker can understand.[17] Yet compliance with this regulation is low. The ILO fishermen study found that 94% of its study participants had no signed agreement with their employer. Many, many migrant workers report that recruiters misrepresent the nature of the work migrants will find when they arrive on the job. The deception is an indicator of trafficking, and could be prevented by written agreements enforced throughout the recruitment process, aligned from the source country through to the shop floor or deck. Labor inspectors should ensure as they go through factories that all workers have such a written agreement, and confirm that the conditions were never misrepresented. Such a system would empower migrant workers with clear expectations and be a powerful tool if those expectations aren’t met.

Unfortunately, migrant workers have few places to turn in such cases. Pervasive corruption in regional offices allows the police to enable human trafficking through legal processes. A study of the Samut Sakhon region by the United Nations Interagency Project on Human Trafficking (UNIAP) documented an extensive network in which certain police worked with certain factories to keep workers in line and extract bribes.[18] One worker described her experience at a small restaurant:

“The employer was very cruel, never spoke a good word, never let me go home, and only paid part of the money I should receive. After three months, I could not stand the hard work and bad situation and I told my employer that I wanted to quit. The employer told the police to arrest me, accusing me of stealing 8,000 baht. She also took my new mobile phone and never paid me my salary. The police put me in jail for 4 days – there were 36 other people in there, including Thais, Burmese, Mon, Vietnamese and Lao.”

ILRF conducted a series of discussions with workers in the same province, and in each one, workers expressed their fear of unprovoked shakedowns by police and indicated that was one of the biggest problems in their community. Threat of arrest and the close relationship between police and factory owners is an often cited factor used to intimidate migrant workers into accepting conditions and not complaining in the face of egregious human rights and labor rights violations, including human trafficking.

The Thai government also actively disempowers migrant workers from speaking out about trafficking by denying them freedom of association. The Labor Relations Act of 1975 prohibits non-Thai nationals from forming or serving in leadership positions within a trade union. There are  few Thai workers in the fishing, agriculture and other sectors where migrant labor is common, and those are more likely to be supervisors or other higher level staff that are not be able to represent the interests of migrant workers. Thai law requires “worker welfare committees” in each factory, but does not stipulate that these must be representative or how the committees are to be formed or operated. Thus, they are usually stacked by the employer, and workers lack any genuine representation. Furthermore, the “worker committees” do not have legal capacity to represent the workers interests and negotiate on their behalf with the employer. It is crucial that the Thai government recognize the right of migrant workers to negotiate with their employer and provide protection against possible retaliatory action for organizing unions.

VI.     Anti-trafficking enforcement

Access to assistance for trafficking victims in Thailand, particularly for non-Thai nationals, is limited and inconsistent. Discrepancies in the outdated Recruitment and Job Seekers Protection Act[19] provide grievance mechanisms for Thai nationals who seek work abroad to submit complaints about labor abuses, but there are no consistently available channels for workers of other nationalities working in Thailand. The Thai Government does operate an anti-trafficking hotline that receives several hundred calls a year, but it’s operated by a Thai NGO and speakers of other languages are not consistently available. Additionally, informal conversations with Burmese migrant workers in Samut Sakhon show very few workers know about the hotline, and had doubts about calling a government-run hotline even when they learned about it, given their extensive, negative experience with law enforcement in Thailand.

When victims are identified, shelters do exist that attempt to assist victims of labor trafficking. These shelters have been helpful to some, according to a UNIAP study,[20] but many workers were frustrated by the length of time they were made to stay in them (and not working) while waiting for their case to work its way through the Thai justice system. Only a fraction of victims actually receive services, however. The UNIAP study documented case after case in which trafficking victims were simply deported as illegal workers, with no services provided. Identification of victims remains a serious obstacle, given the lack of trust between the Thai Government and the migrant worker population, and services for victims need to be adjusted to take into account workers’ needs. Too many are unable to work for long periods of time, and the policy of repatriation of trafficking victims in effects deports them permanently, denying them the opportunity to return and work in better conditions.

In practice, the only recourse for trafficking victims is a small network of NGOs dedicated to migrant rights. With limited reach and resources, and a steady flow of new workers into a largely hidden labor system, they aren’t able to service all the victims in need, though they have excelled at building islands of trust within community bases to spread the word. The task, however, is immense. The Human Rights Defense Fund is one NGO that works on legal cases on behalf of migrant workers. They described a call that came into the office in December 2013 from a Cambodian man on a fishing boat. He had been out to sea for months without access to a phone. He had managed to find access to a mobile phone on a brief trip to shore, explained he was terrified after witnessing a murder on his boat and didn’t know what to do. HRDF tried to talk him to safety, but he hung up the phone and they had not heard from him again.

To date, Thai inspections of work places has been inadequate at identifying cases of human trafficking. Becky Palstrom, a reporter for the BBC, traveled to Thailand recently for a video report on conditions on the fishing boats.[21] The Thai Royal Navy took her out for a model inspection to show how they enforce laws – both fishing and labor. The reporter was the only one there who spoke Burmese. As the Thai police talked to the Thai skipper, she snuck over to speak to the crew, who were clearly afraid to talk to her. She managed to get out of them that they had all arrived on the boat via a broker to whom they had paid high fees, and that they had been on the boat for 7 months with no pay, but soon her questions were interrupted and she had to leave. When she asked the general leading the mission why he didn’t bring a Burmese-speaking inspector with him, he said they normally rely on the crewmaster (who is often one of the worst perpetrators of abuse) to translate for them. Besides, he added, "From what we saw, there was no lock-up or detention room. We saw no signs of harm on their bodies or in their facial expressions. By looking into their faces and their eyes they didn't look like they had been forced to work."

This response indicates a lack of knowledge about human trafficking, a superficial approach to investigating the conditions under which the migrant crew is working, or both. Yet it does not seem to be that out of the ordinary. Despite conducting more than a thousand inspections in 2012, the 2013 TIP Report noted, the Royal Thai Navy did not identify a single case of trafficking. Reports from the ground indicate that the Ministry of Labor is not doing significantly better on land. Until 2008, men could not legally be trafficked in Thailand and sex trafficking was the only crime covered by the previous law. Officials in the Ministry of Labor, Marine Police and Royal Thai Navy (the primary agencies tasked with completing trafficking inspections) have not received adequate training. There is also bureaucratic confusion between these pre-existing entities and the newly formed special anti-trafficking police as to who is primarily responsible, and accountable, for investigations.

The biggest impediment to effective enforcement, however, is corruption within the police force that not only creates an enabling environment for trafficking, but actively supports trafficking efforts. The Environmental Justice Foundation documented a system of flags police established to allow traffickers to pass across the border without fear of arrests and tip offs to factories before raids by Thailand’s Anti-Human Trafficking Division so an abusive employer could hide his forced laborers.[22] OHCHR reports police sexually molesting female migrant workers as they concoct reasons for invasive body searches. [23] Human Rights Watch learned of a case in which police were sent to raid a karaoke bar that employed female sex trafficking victims. Rather than provide assistance to trafficking victims, police were given as much alcohol and cigarettes as they wanted and the services of one of the women free of charge for the evening. These types of stories are commonplace among the groups that work frequently with migrant workers in Thailand. As long as such behavior is widely accepted, Thailand cannot be considered to be making significant efforts to address human trafficking.

VII.  Conclusion

Currently, Thailand does not meet the minimum standards of the Trafficking Victims Protection Act, nor is it yet taking sufficient steps to meet those standards. The Government does have a written plan that would make some effort toward addressing human trafficking, but it cannot be considered significant because it does not address the root causes of the trafficking problem. It does not advocate for any of the legislative changes required to close gaps in Thai labor and immigration law that leave migrant workers completely dependent upon employers and labor brokers to obtain legal working papers, nor does it to anything to regulate labor brokers to prevent the debt bondage currently common among migrant workers. And while it does promote greater enforcement of anti-trafficking legislation, it ignores the significant level of corruption among law enforcement that enables trafficking and must be eliminated before any meaningful enforcement can be expected to take place. The recent example of Thai officials facilitating trafficking of Rohingya refugees is an important indicator both of the government’s reluctance to dismantle the systems that promote labor trafficking, inability to enforce anti-trafficking laws even among its own ranks, and willingness to cover up the issue and silence critics rather than take meaningful action. On this basis, we call on the State Department to place Thailand in Tier 3 in the 2014 Trafficking in Persons Report