Human trafficking and labor migration: the dichotomous law and complex realities of Filipina entertainers in South Korea and suggestions for integrated and contextualized legal responses.

• Author: Shin, Yoon Jin
• Position: Introduction through IV. Analysis of Current Legal Responses A. International and National Legal Frameworks on Human Trafficking, p. 753-787

ABSTRACT

This Article examines the complex legal situation of Filipina "entertainers" in U.S. military camp towns in South Korea: the individuals located at the intersection of human trafficking and labor migration. The Article investigates how the dichotomous law fails to recognize these entertainers as either trafficking victims or as migrant workers. The law therefore denies proper legal rights and remedies for the serious rights violations they suffer in the destination state. This research demonstrates that these migrants have diverse needs, aspirations, and transnational experiences that embrace both victimhood and agency. It illuminates the fundamental problems of the current global anti-trafficking regime, particularly the criminal justice and immigration control agendas of destination states that adopt flattened and paternalistic perception and treatment of trafficking victims. It makes concrete recommendations on how to overcome the law's dichotomy and a crime-and-immigration-control-centered framework; empower victimized migrants in the human, civil, and labor rights contexts; and address the diverse needs of migrant individuals with comprehensive, integrated, and contextualized responses. Crucially, it proposes the right to stay and work in destination states as an effective remedy in itself, criticizing the current repatriation policy that does more harm than good to the individuals.

TABLE OF CONTENTS I. INTRODUCTION II. MIGRATION AND WORK OF FILIPINA ENTERTAINERS IN U.S. CAMP TOWNS IN SOUTH KOREA A. Overview of the Migration Process 1. Figures 2. Migration Through the Entertainer Visa System into the Sex Industry B. A Brief History of the U.S. Camp Town Sex Industry in South Korea C. Working and Living Conditions of Filipina Entertainers D. Mechanisms of Exploitation E. Endure or Escape: Absence of Remedies and Undesired Return III. COMPLEX REALITIES ACROSS HUMAN TRAFFICKING AND LABOR MIGRATION A. Examining Through the Lens of Human Trafficking 1. Definitions Under International and National Law 2. Five Categories for Analysis: Appreciating the Diversity of Victimized Migrants 3. Examining the Applicability of Human Trafficking in Each Case a. The First Category: Agreeing to Singer's Job Only b. The Second Category: Agreeing to Waitressing but not Sexual Service c. The Third Category: Agreeing to Voluntary Sexual Service Only d. The Fourth Category: Fully Informed but Hoping to Leave e. The Fifth Category: Fully Informed and Hoping to Stay B. Re-examining Through the Lens of Labor Migration C. Need for Integrated Understanding IV. ANALYSIS OF CURRENT LEGAL RESPONSES A. International and National Legal Frameworks on Human Trafficking 1. State Obligations Regarding Human Trafficking Under International Law 2. Dominant Trends at the National Level B. Judicial Practice in Korea in the Context of Human Trafficking: Denial of Victimhood 1. Judicial Practice a. Fictional Dichotomy and "Misuse of Agency" b. Prevalent Prejudice Against Filipina Entertainers c. Limitations of the Criminal Justice Framework 2. The Problems of the U.S. TIP Reports on South Korea C. Legal System in Korea in the Context of Labor Migration: Denial of Status and Rights as Migrant Workers 1. Denial of Status and Rights as "Migrant Workers" 2. Denial of Status and Rights as "Workers" D. Concluding Evaluation 1. Breach of Human Rights Obligations by the Korean Government 2. Inadequacy of the Current Global Anti-Trafficking Framework: Empowering States, Disempowering Individuals V. SUGGESTING ALTERNATIVE RESPONSES A. Principles for a New Framework B. Alternative Responses Based on the New Principles 1. Responses Common to All Categories 2. "Observing the Contract" and "the Right to Stay and Work" as Effective Remedies 3. Contextualized Responses for Each Category VI. CONCLUSION I. INTRODUCTION

This Article examines the complex legal situation of migrant "entertainers" working in U.S. military camp towns in South Korea: the individuals located at the intersection of human trafficking and labor migration. The dynamics of law and reality for these migrant entertainers bears a profound connection with global phenomena and legal regimes of human trafficking and labor migration. The laws for trafficking and labor migration have developed in largely disconnected ways. Although scholarship on human trafficking has flourished in the last fifteen years, studies have tilted toward either demonstrating realities without a profound legal analysis or criticizing current law and policy without providing sufficient empirical research. While the current scholarship has produced abundant criticism of the current legal regime on human trafficking, it has been considerably weaker in suggesting detailed alternative responses. Prescriptions have also been lacking regarding the ways to address the diversity among victimized migrants. Based on the author's several years of field experience as a lawyer and researcher, this study seeks to accomplish a comprehensive analysis of the law and the reality of the issue. This Article investigates how a dichotomous law deprives marginalized migrants of proper legal status, rights, and protections and fails to recognize them either as trafficking victims or as migrant workers. The findings and suggestions made by this Article head toward the reform of the international legal regime and national law and policy on human trafficking in most destination states, including the United States. The United States has been the global leader of anti-trafficking regime-building in the last fifteen years.

Part II investigates the realities of migration processes of Filipina entertainers through the entertainer visa system in Korea, their life and work under abusive conditions in the "foreign-only" clubs that exist in U.S. military camp towns, and the reasons why the majority of the entertainers are enduring their current situations. Part III examines the complex situations of these entertainers through the lenses of human trafficking and labor migration. It sets out five different groups of Filipina entertainers for comprehensive and contextualized analysis based on their prior expectations about their jobs and current desires after migration. Part III exposes diversity among these migrants and their multi-layered experiences and argues for a legal framework that responds to their vulnerabilities and agency in integrated and contextualized ways. Part IV begins with examining state obligations regarding human trafficking and the location of human rights of migrants in trafficking situations under the current international law. It also summarizes global trends of the anti-trafficking frameworks at the national level. This Part then investigates the current legal responses of the Korean government. It analyzes the way in which the legal system and practice effectively denies migrant entertainers' legal status and rights either as trafficking victims or as migrant workers, and how the law successfully marginalizes them as "unlawful foreign hostesses." (1) Findings in Part IV suggest why the current anti-trafficking regimes around the globe are inadequate. This study also critically analyzes actual decisions by Korean courts and prosecutors in criminal cases brought by migrant entertainers against their employers. Part IV evaluates the responses of Korea in terms of its human rights obligations and responsibilities. It further argues that the current global anti-trafficking regime empowers destination states and disempowers the individuals it claims to protect. Finally, Part V suggests alternative legal responses to each category identified in Part III. It first sets out principles of comprehensiveness, integration, and contextualization to reform the current anti-trafficking regime, and then makes concrete recommendations in the case of Filipina entertainers, with the aim of empowering them with enhanced legal status and rights in the destination state. Current anti-trafficking legal frameworks, occupied by "criminal justice and immigration control agendas," have yet to develop concrete and effective remedies for migrants victimized by trafficking and related human rights violations. This Article argues for ensuring the entertainers' status in destination states as rights holders in the human, civil, and labor rights contexts, overcoming their current passive positions as victim-witnesses captured in a criminal context. It suggests new positive forms of remedies and legal responses, which will hopefully inspire scholars and practitioners in the field of international law and human rights who seek ways to make the law of human trafficking do actual good for the people.

2. MIGRATION AND WORK OF FILIPINA ENTERTAINERS IN U.S. CAMP TOWNS IN SOUTH KOREA

   1. Overview of the Migration Process

      1. Figures

         Every year, more than four thousand foreigners enter South Korea with "art and entertainer" (E-6) visas. (2) E-6 visas are issued with three subcategories: artists, or entertainers who will appear in the media (E-6-1); entertainers who will perform in tourist establishments, including tourist hotels, tourist restaurants, and "foreigner-only entertainment establishments" (E-6-2); (3) and sportspersons (E-6-3). Since 2004, women from the Philippines have dominated the E-6-2 category. As of June 2014, 5,086 foreigners reside in Korea with E-6 visas. (4) Among them, 82.7 percent (4,207) are staying with E-6-2 visas. (5) Of these foreigners, 85.6 percent (3,602) are women. (6) Among those women holding E-6-2 visas, 85.7 percent are from the Philippines (3,089). (7) Under Korean immigration law, every E-6-1 and E-6-2 visa applicant must receive a "recommendation of performance" from the Korea Media Rating Board before applying for a visa. (8) In 2013, the Board issued 1,850 recommendations for E-6-2 categories, among which 75.1 percent were for performing in "foreigner-only entertainment establishments" (hereinafter foreigner-only...