Prostitution Of Women Inside Ships Docked In Foreign Ports

1 I. Prostitution of Women inside ships docked in Foreign Ports A. Prostitution Prostitution became so rampant that it evolved in different countries and became a universal problem that it triggered different international organizations to do something about it. This topic is of consequence because of the fact that it practically assesses how women should be protected in instances such as their entering the flagstates ships docked in foreign ports and to further explain their rights as well as the duties of those individuals involved. Because she is inside the extension of the flagstates territory, will she, as a citizen be made liable of the acts committed in contradiction to the laws of implemented by her country or gain immunity inside the comfort of the flagstates ships. Specific regulations are employed by the flagstates to ensure the appropriate conduct of its crews and officers on board but these paper would try to look at as to what extent do the regulations reflect the need to advance or promote the welfare of women. Prostitution by definition is the performance of sexual acts solely for the purpose of material gain. Persons prostitute themselves when they grant sexual favors to others in exchange for money, gifts, or other payment and in so doing use their bodies as commodities. They are mostly referred to those women engaging in sexual services in exchange for a specified amount of money. Prostitutes may be of either sex, but throughout history the majority have been women, reflecting both the traditional socioeconomic dependence of women and the tendency to exploit female sexuality. Although prostitution has often been characterized as the “world’s oldest profession,” the concept of women as property, which prevailed in most cultures until the end of the 19th century, meant that the profits of the profession most often accrued

2 to the men who controlled it.1 We have interviewed another chief mate who travelled all over the world as a seaman his name was Mr. Tomas Nualla, aged 54, said that he had a comrade who was a gay seafarer and the others know it too and everytime the ship docks he finds a way to provide himself with sexual services from male prostitutes but also he said that this was just some of the exceptional circumstances. The port areas according to the interviewee wherein the prostitutes goes inside the ships was in Thailand, Russia, Hong Kong, China, Indonesia, New Zealand. He himself said that even the red guards in China are tolerating the said incidents. B. Prostitution in Thailand By taking the context and the situation of Thailand, it shows relatively that women are accorded a low status in the society making them vulnerable to false pretensions of pimps and abusers adding the fact that most of them lack formal schooling and are deprived of essential information. Women are expected to give back all the hard work that the parents did for them and so because of their lack of educational attainment, they have no recourse other than to find jobs that would be easy to earn money disregarding the idea that it might be fatal and can lead them to have Acquired Immunodeficiency Syndrome (AIDS). It is a human viral disease that ravages the immune system, undermining the body’s ability to defend itself from infection and disease and is primarily caused by the human immunodeficiency virus.2 This concept of obligation was deeply inculcated in Thai tradition making it hard for

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Jennifer James. "Prostitution." Microsoft® Encarta® 2007 [CD]. Redmond, WA: Microsoft Corporation, 2006. 2 John G. Bartlett "Acquired Immunodeficiency Syndrome." Microsoft Encarta 2007 [CD]. Redmond, WA: Microsoft Corporation, 2006.

3 the women to deviate from these expectations. So because of this they learned various strategies to be able to supply themselves their own necessities as well as their family’s needs. Instead of just taking into account the occurrence of prostitution in wherever it would be conventionally possible: brothels, bar, massage parlours, streets and so on. We became more focused on how ships, specifically those flying a particular flag are also prone to be the areas of prostitution of women docked in foreign ports. The impact of prostitution to the Thai economy has resulted in billions of baht pouring the economy making it easier for women to support their families in rural villages and provide themselves with basic needs as well. Thai economy is dependent upon these sex workers because they contribute a considerable amount of increase in the country’s economy. Most of these women who are into prostitution started as a young girl given no choice but to enter into that kind of occupation. For it was said that many foreigners prefer young girls over those mature ones for they believe that they are still innocent and are free of any diseases which is considered to be a myth because some experience symptoms of diseases. In Thailand, prostitution is considered unlawful and they have provisions regarding the matter.3 Despite this recognition of the fact that prostitution is unlawful, there is still the widespread acceptance of people about prostitution as becoming one way of earning money. In other words, it became a source of income of the family and is treated as an occupation which contributes to the betterment of the country’s economy. In accordance with this idea, prostitutes have been constantly inside flagstates ships everytime it docks specifically in Thailand to provide their services and in order to provide their services and in order to earn money. 3

This law basically is the Act on Prevention and Suppression of Prostitution which was passed by the Thai Government last 1996.

4 These women who maneuver their way inside the ships are waiting at the port area in Thailand where the ships will be docking making it an opportunity to earn money. A secret ladder will be placed somewhere which would become the venue for them to be able to enter the ship which should have been restricted because they are unauthorized, nevertheless they still continue until they are inside and off to the officer or the crews’ room. One seafarer that we interviewed, Mariano Rio, said that some prostitutes paid the crews who saw them entering their ship so that they would not be forwarded to the police and in turn would be able to convince this officers and crews to avail of the services. The name of the ship where he worked as a second mate is Oceania having Panama as the port of register. Some prostitutes seeing the arrival and eventual preparation for docking of the ship would ride a boat and the ship’s ladder at the sides would be lowered down to accommodate them. One international organization which seeks to promote women’s welfare in Thailand is the Canadian International Development Agency. It has helped build capacity to broaden public participation in development, improve access to the legal system, and advance the rights of women and children. The Southeast Asian Gender Equity Program extends CIDA’s assistance for activities among Southeast Asian women’s organizations. SEAGEP programs include advocating women’s rights; human resource development; appropriate integration in the economy; personal security, empowerment and decision-making. Another is that there are various UN agencies joined together in late 1995 to form Gender and Women Development Working Group (GWAD). The primary objective is to facilitate collaboration of the United Nation’s system in pursuing areas of common interest, the exchange of

5 information and cooperation and complementarity program development and implementation.4 II. Main Issue There is no denying that the sex industry has taken on international dimensions, recognized as an economic motor for many countries, particularly in Asia. Even here in the Philippines, women were also involved in the prostitution inside ship.5 The United Nation obligates the States to refrain from committing human rights violations and also to take positive measures to ensure that individuals are able to enjoy their human rights. Treaties and Conventions are human rights instruments upon which the legal obligations of the States are articulated. The declarations and resolutions which is a politically, binding documents that do not have the force of law and is drafted by the United Nations but which nevertheless represents important guidelines and procedures on State’s obligations. The main issue on this paper is, whether who will be obliged to protect these women involving the prostitution inside the ship docking on an international port and the undertaking of the present measures to protect them. Majority of the seafarers that we have interviewed, from an ordinary working seamen up to those who have obtained a higher position at the ship he was sailing with stated that depending upon the type of the port of one’s country in which the international ship is going to dock and one must also considered the type of the ship, the seafarers are cruising with to make such a response towards the issue of prostitution. In South American countries like Brazil, Colombia and Venezuela,

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Asian Development Bank.Country Briefing Paper: Women in Thailand. Asian Development Bank: Programs Department West and Office of Environment and Social Development, December 1998. 5 According to chief mate Joemarie Gonzales sailing a ship of MT ALDAN with a port of registry in MALTA, women were waiting for the international to dock and they would immediately run towards the ship once docked mainly for financial reasons.

6 prostitution inside ship is predominant. The captain of the ship is expected to follow and implement the company and owner’s policy in the conduct the ship is expected to follow and implement the company and owner’s policy in the conduct inside the ship’s premises. Maritime Affairs Ministry has to work on ways to give ship crews “preventive education” in the hope they would stop sexually patronizing women. The role of the State is also important in the protection of women from prostitution. Moreover, States have a different restrictions and enforcement of law. There was this issue on the prostitution which involved the Korean nationals and the local women in the Pacific Island of Kiribati. In addition, prostitutes in Kiribati are referred to as the “korakorea” mainly because of the nationalities of their most frequent client who are Koreans. In 2005, it only shows that the issue was so serious that there was a banning of Korean ships from docking at the port of the Kiribati. There were some women who were underage as young as fourteen years old and that they had admitted that they were being sold to Korean men. According to the statistics, there were about forty to fifty local women in Kiribati who were engaging in prostitution with Korean nationals there on port calls. The increasing number of Acquired Immunodeficiency Syndrome or commonly known as the AIDS virus led also to the banning of the Korean ships. During a period of 2003, because the crews consistently tried to buy sex there, the authorities of the Kiribati prevented the Koreans from calling to port. The problem here is that, in South Korea, there exists no criminal provision for overseas child sex tourism and prostitution. The banning however was the decision made by the Roman Catholic Church in which it threatened the government of Anote Tong to step down if he could not solve the prostitution issue in the country. In the case of those States who have already legalized prostitution, although prostitution is considered to be legal, yet there are still

7 limitations on how a State considered the act as really legal and how far it is to go beyond that legalization. The examples to be given here are the States which legalized prostitution. In Greek and Turkey, women must register and attend clinic for regular examinations particularly twice a week and in Western European countries such as Germany, prostitution is legal but only for European Union residents and in Denmark wherein it is not illegal to provide sexual services so long as prostitution is not the main source of income.6 Many countries make it clearly illegal yet widely tolerate it. Governments have developed the three basic legal frameworks concerning prostitution; the prohibition which is the act of accepting payment for sex and sometimes paying for sex is illegal, the law forbids certain activities in relation to payment for sex rather than paid sex itself and this falls under criminalization and this is considered to be the most common legal framework for commercial sex throughout the countries. And finally, the regulation, exception to criminal law made for those parts of the sex industry which complies with certain conditions. However, in India despite the many laws against the sex industry and traditional caste-bound prostitution, trafficking and prostitution is still common. Therefore, it is illegal to be a prostitute or to live off a prostitutes earning. The laws are not consistently enforced. Women were involved in this situation and they are the female sellers however, it is the seafarers themselves who actually determine the shape of each prostitution cases. Although there are as well instances that prostitution at ship were being conducted by males and it happened oftentimes, but if we compared to the situations among the female prostitutes it is likely most of the prostitutes are women and that they need a support coming from the international bodies and upon which the ______________________ 6

Prostitution Education Network

8 implementation of international standards on human rights is impossible without the assistance of the corresponding national legislation. III. Resolutions: A. Rights of Women Women have rights just as men also have. But because of the predominant patriarchal societies, most women become the marginalized sectors in the society; depriving them of their basic rights so many organizations were founded to suit the demands of women for equality. Prostitutes can face different circumstances such as the client abuse, disease and others and no matter we think about the morality commodified sex, we understand that these women should not have to face such risks. This part is our resolution to the ongoing prostitution that is happening inside a foreign ship. These include the Convention which aims to protect the women, International Organization and the International Law itself. The development of international mechanisms and procedures aimed at promoting compliance with the human rights, and the access of individuals to these international agencies, testify to the fact that the individual is increasingly coming to be involved directly with international law. In the international law particularly in Human Rights, there is this so-called, Principle of Non-Discrimination. It is both a human right of its own and a constitutive element of all human rights. The rules are to be found at both the national and international level. This principle has undoubtedly acquired the status of a fundamental rule of human rights law. It is widely held that the principle of nondiscrimination is a principle of customary international law, and at least as regards discrimination on the basis of sex, race and ethnic origin, it has also the status of jus

9 cogens.7 With a view to the differences in the protection provided especially in international instruments, it has to be emphasized that the individual is always entitled to the best protection provided in any applicable instrument. Next is the Convention on the Elimination of all Forms of Discrimination Against Women or popularly known as the CEDAW which defines what constitutes discrimination against women and set-up an agenda for national action to end such discrimination. On the Art. 6 of the CEDAW, it stated there the importance of the national legislation to protect the women8 and the appropriate measures to eliminate discrimination against the women in the field of employment in order to ensure the equality of men and women.9 One of the organization that was the first specialized agency of the United Nation is the International Labor Organization which aims to promote the rights at work, encourage decent employment opportunities, enhance social protection and strengthen dialogue in handling work-related issues working intensively throughout the world to promote a solid legal framework for respecting social rights. We have included this in our resolution since the International Labor Organization make a technical cooperation projects through the close international cooperation between countries. B. Duties of Flagstates As defined by the United Nations Convention on the Law of the Sea (UNCLOS) the implementation and enforcement of international maritime regulations for all ships granted the right to fly its flag. However, the flagstates may conduct the larger part of its activities through entities located in other countries. The flagstates

_______________________ 7 No derogation is permitted from a jus cogens norm as laid down by Art. 53 of the Vienna Convention projects through the close international cooperation between countries. 8 State Parties shall take all appropriate measures including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women 9 Art. (11)(f)

10 has the responsibility for the implement action and enforcement of rules adopted by other Inter-Governmental Organization bodies including the International Labor Organization. Under the UNCLOS, the duty of the flagstates is stated in the Art. (94) (1) in which every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. That is why if the seafarers were caught having a prostitute inside the ship, he will be directly liable to the company of the ship he is flying since the flagstates has the responsibility over the seafarers. Under the Art. 94 (2)(b) of the UNCLOS, every State shall, assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. All flagstates should endeavour to ratify the principal maritime treaties such as those being adopted by the International Maritime Organization and the International Labor Organization and as a responsible flagstates, they should be able to identify some valid explanations if they were not bale to ratify any treaties and in practice should be expected to implement and enforce national regulations that comply with the vast majority of the detailed requirements specified within these international regulations. By this provisions it can be interpreted as something which simply implies that whatever actions the crews, master and officers commit, they are held accountable under the laws of the flagstates. (Shipping Industry Guidelines on Flagstate Performance.:2008) C. Obligations of Crews and Ships The very nature of life at sea, with men and ships always vulnerable to the elements, requires that proper discipline be maintained on the vessel. Under the general maritime law and by the statute disciplining seamen, under certain circumstances is enforceable by fines, forfeitures and deductions from earned wages.

11 Under General Maritime Law, there must be a case of high and aggravated neglect or disobedience, importing the most serious mischief, peril or wrong; a case calling for exemplary punishment, a case involving a very gross breach of the stipulated contract for hire. In consideration of the nature of a seaman’s life, with its long periods of close confinement to the ship and her personnel, and the absence of usual amenities of life on the shore, the maritime law has adopted a mild and liberal view toward the mariner’s conduct while in the service of the ship. It punishes gross and obstinate offences including the forfeiture of wages especially if they continue to persist without repentance or does not make amends. There are rules of behaviour wherein the crews agree to conduct themselves in an orderly, faithful, honest and sober manner, to be diligent in their duties and be obedient to the lawful command of their master. (Norris: 1994, p.467) 1.

International Maritime Organization Rules (IMO) Ultimately, safety rests very largely with the crews of ships rather that with the ships themselves. For this reason IMO has attached the utmost importance to the training of ships' personnel. In 1978 the Organization convened a conference which adopted the first ever Convention on Standards of Training, Cerification and Watchkeeping for Seafarers. The Convention entered into force in April 1984. The Convention established, for the first time, internationally acceptable minimum standards for crews. It is not intended as a model on which all States must necessarily base their crew requirements, for in many countries the requirements are actually higher than those laid down in the Convention. Rather the Convention is

12 aimed at eliminating inadequate or supplementing insufficient requirements wherever necessary, while at the same time providing developing countries in the process of building up their fleets with internationally acceptable minimum requirements and standards. Each year the Organization arranges or participates in numerous seminars, workshops and other events which are designed to assist in the implementation of IMO measures. Some are held at IMO headquarters or in developed countries, others in the developing countries themselves. 2. Rules of Hiring Companies (Employers and Seafarers) Certain rules are employed by the hiring companies involving the conduct of the seafarers for which would become the basis for their own manner of behaviour. The Regulation on the employment and related to employment relationships between seafarers and shipowner’s general provisions is to regulate the employment and those directly related to employment relationships between seafarers on a ship flying the flag of Bulgaria and the shipowner. This involves the conditions for hiring and signing of an employment contract, hours of work, hours of rest, paid annual leaves, repatriation, social and cultural conditions on board and shipowner’s liability in cases of disease or accident affecting the seafarers and those obligations as stated in the regulation. There are many provisions which were inside the scope of the regulations and these includes, employment relationships, repatriation, hours of work and rest, overtime and night work, paid annual leave and it also was stated the obligations of seafarers. Section three of the said regulation on Article 80, stated that, “The seafarers

13 shall not perform onboard ship an activity they do not have the necessary qualification or license for, or activity which is not included in their employment obligations.” Seafarers are bounded to do their duties on board ship and nothing more than doing things contrary to the contract they signed. Before making themselves available in working to the said vessel, they were able to read the agreements and so there is no reason why they would not know what is stated.

3. Recent Developments in the International Ship and Port Facility Code (ISPS Code) This is in response to the adopted amendments to the International Convention for the Safety of Life at Sea and requires that ships, companies and port facilities to comply with the requirements. The code embodies a series of functions and these includes but are not limited to gathering and assessing information with respect to security threats and exchanging information with respect to security threats, preventing unauthorized access, port facilities and their restricted areas. According to the part of the International Code for the Security of Ships and Port Facilities which contains mandatory provisions specifically on the ship security and this is to take preventive measures against security incidents such as ensuring the performance of all ship security duties, controlling access to the ship, controlling the embarkation of persons and their effects, monitoring restricted areas to ensure that only authorized persons have access, monitoring of deck areas and areas surrounding the ship and these activities shall be carried out through appropriate measures being taken. In general ISPS code was designed to address international maritime security concerns on terrorism after the September 11 attack. Second is to ensure that international acceptable standards and security measures are in place. Third, is to

14 enhance the ability of sovereign nations to detect or deter security threats within an international framework. Fourth, to establish clear and identifiable roles for doing so. Lastly, to provide a platform for the collection and exchange of security intelligence. (ISPS: 2007, p. 2) Because of this code, it was said to be the reason why there is the inability of the prostitutes to enter ships because of the restricted areas of ships and inaccessibility of the ship to unauthorized people because of the fear of terroristic activities that might happen. It really helps to improve security and better protect people and cargo, as well ports and international shipping against terrorism. Because of this code, women is protected from uncertain circumstances that might happen such as torture or cruelty from the ship crews, officer or the captain of the ship.

D. Obligations of Port States International law has recognized that port states may affirmatively take measures to inspect vessels visiting their waters and enforce internationallyrecognized maritime standards for ship operations and other environmental rules. It is also generally recognized in international law that a ship voluntarily entering a foreign port accepts the jurisdiction of that foreign state. Under international law the flag State is primarily responsible for ensuring compliance with international minimum standards. Article 94 of the 1982 UN Convention reaffirms this fundamental principle, but also makes clear that flag states have certain obligations especially with regard to ensuring compliance with international minimum safety, pollution prevention and social standards. Similarly, Article 217 of the 1982 UN Convention sets out an obligation on flag States to

15 effectively enforce such international rules, standards and regulations, irrespective of where the violation occurs. These requirements were incorporated in IMO Resolution Guidelines to Assist Flag States in the Implementation of IMO Instruments (A. 847 [20]). Article 91 of the 1982 UN Convention requires there to be a "genuine link" between the vessel and the flag State. Although the "genuine link" is not expressly defined in the 1982 UN Convention, other Articles, especially Article 217, implicitly point to the requirement for at least an "economic link". This indicates that there should exist within the flag State a substantial entity which can be made responsible for actions of the vessel and on which penalties of adequate severity can be levied so as to discourage violations of applicable international minimum rules and standards, wherever they occur. IV. Constraints:

1. UNCLOS does not establish definite obligations of the flagstates in specifically ensuring women’s welfare in foreign ships. Although UNCLOS has provided provisions for the flagstates duties in terms of the social matters involving the ship and its crews, officers it did not specify the fact that in the provisions, women’s rights were being advanced or promoted. It was not precise in really identifying how women specifically her rights can be protected by the flagstates. 2. Lack of Strict Regulations for the crews and Officers There is the laxity of implementing the rules and procedures given by the IMO and other treaties that the ship had ratified with. This is mainly the reason why prostitution is still continuously happening within the international ship because of the

16 lack of disciplined among the sailors. In our interviews to the seafarers, if they were caught they would have the quick response to the captain that the prostitutes that they brought inside was a friend of them so the captain would just leave them behind without any words and at times they would be only required to give a fine which was not specified if how much that is and received a warning and that he will be expected not to do the certain acts again. At present, there is no international agency that provides guidance on AIDS health promotion targeted at seafarers. There is no support for regional projects on AIDS health promotion for seafarers and no information network and resource center on information packages and that AIDS has not been mainstreamed in the training of the seafarers and it is never a part of the curriculum in maritime scholar. Finally, within the United Nations bodies, not a single cent has been directed to purely seafarer’s intervention. The continuance of the actions of hiring the prostitutes inside the ship was said to be the norms on-board to help ease the emotional affection of the seamen being away from their family. And some of the officers tolerate the action and it was visibly clear that there was a part of the ship like a room being used if they have a prostitute with them. And hiring a prostitute per se is not a criminal offense and that there is no such policy to regulate the said activities going on inside the international ship. Conclusion Although women’s rights as of the present is being recognized by many institutions, states and other personalities and even if there are organizations which promote or advance the rights of women, still it is not enough to foster rigid enactment universally. The domestic laws of the countries, even with the intent to jail those who exploit these women, the women themselves are not even willing to reveal the informations about the member of their families. Certain obligations of crews and

17 ships, flagstates, port states does not directly involve the consideration of women’s welfare. They are vague and does not give precise steps as to the way women should be treated and it was just assumed out of those provisions. The Conventions and other international organizations can be used to regulate the prostitution inside the ship docked in foreign ports.

References: Baculna, Jennibeth and Sherry Ann Bayona. Interview with Joemarie Gonzales, February 24, 2008.