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Debt bondage women workers from Thailand to Malaysia

Asian women workers on the street

Asian women workers on the street

Several practices similar to slavery are elaborated under the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. This convention condemns debt bondage, serfdom, compulsory marriage, and the pledge of a child's labor to another person by the child's guardian as institutions and practices similar to slavery. According the convention, "A person of servile status" means a person in the condition or status resulting from any of the following practices:

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

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

3. Any institution or practice whereby:

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

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

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

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

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Escort Service in Malaysia

Escort Service in Malaysia

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

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

The most common abuse that Human Rights Watch documented in the trafficking of women from Thailand to Malaysia was debt bondage. Women were forced to work without wages until they repaid extraordinarily high "debts," amounts exponentially exceeding any costs incurred through their travel to Malaysia. Some – though not all – of the women understood that they would have a debt to repay when they agreed to migrate, but the length and nature of the services to be performed were not adequately limited or defined. Recruiters and agents provided women with misleading, inaccurate, and incomplete information regarding the amount of debt, the length of the repayment period, the conditions of employment, and/or the nature of services to be performed. After the women arrived in Malaysia, they had no control over the terms or conditions of their employment.

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Broker and employer for woman

Broker and employer for woman

A woman's initial debt was typically based on the "price" negotiated by her broker and employer, and her employer then enjoyed full control over her working conditions and debt repayment calculations. In addition, many of the women we interviewed indicated that the value of their labor was not "reasonably assessed" and "applied towards the liquidation of the debt." Rather, employers augmented debts with arbitrary expenses, fines, and dishonest account keeping, and even maintained the power to "resell" women into higher levels of debt before their initial debt was paid off.

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

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

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Women's rights in Malaysia

Women's rights in Malaysia

Human Rights Watch also documented violations of women's labor rights in Malaysia that were the direct result of trafficking. These abuses constitute violations of both Malaysian domestic legislation (see the "Malaysian Government Response" chapter for a discussion of Malaysian labor laws) and international human rights law. To provide adequate redress for trafficked persons and to deter further violations, Malaysia must take the steps necessary to prevent these abuses, punish offenders, and compensate victims. The Thai government should also adopt measures aimed to protect its nationals from labor rights abuses both at home and abroad and to facilitate Thai women's ability to seek compensation for labor rights violations suffered in Malaysia.

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

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

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Debt bondage women workers from Thailand to Malaysia Debt bondage women workers from Thailand to Malaysia Debt bondage women workers from Thailand to Malaysia Debt bondage women workers from Thailand to Malaysia

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Malaysia and Thailand have made an additional commitment to suppress the use of forced or compulsory labor in all its forms within the shortest possible period.

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