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ICFTU/ETUC SUBMISSION TO THE EU-GSP
Subject: ICFTU/ETUC SUBMISSION TO THE EU-GSP (1/4)
/* posted 17 Aug 6:00am 1996 by DRUNOO@xxxxxxxxxxxx in igc:reg.burma */
/* -------------" ICFTU &ETUC Report on Forced Labour (1/4) "----------- */
[ Reproduced from the submission by Australian Council of Trade Union to
Australian Human Rights Sub-Committee, Vol 6, pp.1010-1032 -- U Ne Oo.]
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Burma: SLORC's Private Slave Camp
Submission to the European Union Generalised System of Preferences
ICFTU. International Confederation of Free Trade Unions
155, Boulevard Emile Jacqmain, B-1210 Brussels
Tel.:224.02.11 Fax:201.58.18
ETUC. European Trade Union Confederation
155, Boulevard Emile Jacqmain, B - 1210 Brussels
Tel.:224.04.11 Fax:224.04.54
1. INTRODUCTION
2. FORCED LABOUR UNDER INTERNATIONAL LAW
2.2 International labour law
2.3 International Humanitarian Law
3. FORCED PORTERNING AND ILO STANDARDS
3.1 The ICFTU Representation under ARt. 24 of ILO Constitution
3.1.1 The ICFTU allegations
3.1.2 Inapplicability of Exceptions from the scope of convention
3.1.3 The Government's response
3.1.4 The conclusions of the ILO Committee
4. OTHER TYPES OF FORCED LABOUR OCCURRING IN BURMA
4.1 Military labour
4.2 Major development and infrastruture projects
4.2.1 The Three Pagodas Pass Motor Road
4.2.2 The "Death Railway" project
4.2.3 The Yadana Gas field and the pipeline to Thailand
4.2.4 The Yetagun gas fields in the Gulf of Martaban
4.3 Tourism development projects
4.3.1 Mandalay: the Moat of the Gold Palace
4.3.2 The New Dam at Inlay Lake
4.3.3 Construction of Airport
4.4 Army-owned Commercial Ventures
5. CONCLUSION AND RECOMMENDATIONS
5.1 A record of violations
5.2 The economic and political impact of forced labour
5.3 The withdrawal of European GSP benefits
LIST OF APPENDICES
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1. INTRODUCTION
The present document examines various aspects of forced labour, as it is
practised today in Burma.It has been prepared as background information for
a joint international trade union submission to the European Union(EU),
which aims at the temporary withdrawal, in whole or in part, of trading
privileges, which Burma enjoys in its exports to the European Union. This
submission is jointly lodged by the International Confederation of Free
Trade Union (ICFTU) and the European Trade Union Confederation (ETUC),
pursuant to Article 9 and 10 of EU Council Regulation n.3281/94 of 19
December 1994, which provides for the possible withdrawal of tariff
preferences for certain industrial products originating in developing
countries which either: a)use prison labour in the production of exports to
the EU, or: b) practice any form of forced labour, as defined by
international law [1].
The practice of forced labour in Burma (called Myanmar by the country's
present authorities) is well-documented. International bodies such as the
United Nations' Commission on Human Rights (UNCHR) or the International
Labour Organisation(ILO) have published numerous detailed reports on the
subject. They have consistently supported claims of massive human rights
violations committed by or with the consent of the Burmese authorities in
the context of forced labour exacted from the civilian population. This
happens in various parts of the country; it is in no way limited to border
- or other conflict-areas. Human rights groups, based both in Burma and
abroad, have published thousands of pages of first-hand accounts given by
victims of various forms of forced labour.
The evidence is both consistent and overwhelming: the use of forced labour
in military operations, civilian or military construction, maintenance work
and infrastructure (including tourist) development is part-and-parcel of
the Burmese populations everyday life. It is characterised by systematic
coercion and violence, imposed by the army, police and other security
forces. Drawing on outdated legislation inherited from the colonial period,
the so-called State Law and Order Restoration Council (or SLORC) claims its
record in this respect to be consistent with both domestic law and
legitimate needs for community participation in the nation's social and
economic developments. To the contrary, the international human rights'
community maintains that forced labour in Burma constitutes a prima facie
violation of international human rights standards and international
humanitarian law, including binding international standards on the
treatment of civilian populations during armed conflict, as defined by the
Geneva Conventions of 12 August 1949.
The document examine the issue of forced labour under international law. It
summarize rulings by the ILO and other UNCHR on the occurrence of this
phenomenon in Burma. It details, on the basis of first-hand accounts by
victims, the most common types of forced labour presently imposed on the
population by the country's armed forces, including forced portering,
military labour and work on large-scale infrastructure projects, on
army-owned commercial projects andin tourism infrastructure building. Where
available information is included on the occurrence of forced labour in the
context of infrastructure projects operated by or on behalf of
foreign-including European Union- investors, essentially in the energy
supply sector.
2. FORCED LABOUR UNDER INTERNATIONAL LAW
The practice of forced labour constitutes a violation of three different
categories of international law. The section below demonstrates that
Burma's authorities stand in breach of all three: international labour law,
i.e. ILO Conventions on Forced Labour; and international humanitarian law,
i.e. the Geneva Conventions of 1949.
2.1 INternational Human Rights Law
The international Covenant on Civil and Political Rights, 1966 (hereafter:
ICCPR), ratified by over 125 countries (but not Burma) forms part - next to
the Universal Declaration on HUman Rights and the INternational covenant on
Social, Economic and Cultural Rights - of the "UNiversal Bill of Human
Rights", which is commonly regarded as constituting the set of minimum
human rights standards which should be observed by all States. The ICCPR
provides, inter alis, that:
"NO one shall be required to perform forced or compulsory labour"
(ICCPR, Art 8, Sec 3(a))
Needless to say, the ICCPR also covers the whole range of elementary human
rights, including the right to life, to freedom and security of the person,
the right not to be arbitrarily detained or arrested, the right not to be
submitted to torture or other inhuman or cruel punishment, etc... It is
thus noteworthy that the UNCHR's Special Rapporteur on MYanmar, Mr. Yozo
Yokota, has linked many violations falling under the ICCPR to the
occurrence of forced labour in that country. Amongst facts reported by the
Special Rapporteur are:
- alleged execution of persons for resisting to become porters for the army
or labourers on the military construction projects:
"Eye-witness accounts from Papun, Pa'an and Thaton Districts are
consistent in alleging that hundreds of Karen villagers were shot
or beaten to death by the Tatmadaw[2] including children and
persons over the age of 65 accused of being insurgent, many while
portering..."
- torture, cruel, inhuman or degrading treatment, including rape:
"During forced portering and forced labour, the practice (of
torture, ed.) includes beating, kicking, burning, whipping, sleep,
food and water deprivation, denial of medical treatment, carrying
heavy loads in rugged terrain's and in extreme temperatures. The
repeated rape of women has been alleged. In some cases it has
reportedly been carried out as a method of reprisal."[4]
- disappearances:
"Disappearances have most frequently occurred, since the last visit
to the Union of Myanmar by the Special Rapporteur, in the context
of recruitment for forced labour and forced portering."[5]
(Note: the above statements from the Special Rapporteur may be illustrated
by thousands of cases, reported by numerous inter- and non-governmental
organisations. A comprehensive, over 1,500 page-long collection of relevant
source documents - arranged chronologically and thematically - has recently
been compiled by the Burma Peace Foundation[6]. For the purpose of the
present European Union G.S.P. presentation, it is appended herewith as the
"Supporting Documents". However, or a summary illustration of grave human
rights violations, one may refer to Appendix A included herewith: "Human
rights violations in the context of forced portering: summary victims'
accounts")
Furthermore, the UN Commission of HUman Rights has over the years adopted a
number of Resolutions on the Situation of Human Rights in Myanmar. These
are the texts which, inter alia, provided for the establishment and
extension of mandate of the Special Rapporteur, Mr Yozo Yokota. The 1993
and 1994 Resolutions are attached herewith as Appendix B.
2.2 International labour law
The International labour Organization (ILO) has itself developed specific
norms prohibiting forced labour. they are ILO Convention (N0 29) concerning
Forced Labour, 1930 and ILO convention (n0 105) concerning the Abolition of
Forced Labour, 1957 Convention 29 has been ratified by 136 countries,
including Burma. It provide, inter alia that:
"Each member of the International labour Organisation which ratifies this
Convention undertakes to suppress the use of forced or compulsory labour in
all its forms within the shortest possible period",(ILO Convention n 29,
Art 1.1)
"For the purpose of this convention the term "forced or compulsory labour"
shall mean 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
voluntary"(idem., Art. 2.1)
ILO Convention no. 105 which updated the earlier Convention no.29, has been
ratified by 115 countries, but not Burma. It determines, inter alia that:
"Each member of the International Labour Organisation which ratifies
this Convention undertakes to suppress and not to make use of any form
of forced or compulsory labour:
(a) As a means of political coercion or education or as a punishment for
holding or expressing political views or views ideologically opposed to
the established political, social or economic system:
(b) As a method of mobilising and using labour for purposes of economic
development;(ILO Convention no 105, Art, 1. a,b)
In recent years, the Government of Burma has repeatedly been requested by
the ILO to respond to grave and consistent allegations of violations of ILO
Convention no 29, as well as to put its national legislation and practice
in conformity with the Convention[7]. To-date, no positive evidence has
been submitted by the SLORC of compliance with any of these ILO
recommendations. In addition, however, Burma's record of compliance was the
object of a special ILO investigation, initiated in 1993 by the
International confederation of Free trade Unions (ICFTU) under article 24
of the ILO Constitution.(The outcome of this procedure is related in detail
in the next section of this report).
2.3 International humanitarian law
International human rights principles guarantee the life and security of
all persons, including a government's own combatants. Furthermore, all
persons should be protected against cruel, inhuman or degrading treatment
or punishment. Severe violations of human rights committed against
civilians during armed international and internal conflict are prohibited
specifically by the Geneva Conventions of 12 August 1949, especially Common
Article 3 to the four Conventions and Protocols 1 and 11 Additional thereto
Forced labour exacted by SLORC combatants from civilian populations in the
context of counter-insurgency operations in commonplace; it includes
carrying heavy military equipment such as gun- or motor-shells and other
ammunition, equipment or foodstuffs, as well as serving as human
mine-sweepers and "shields"[9]. Furthermore, this work is being exacted
under threat of service punishment for non-compliance, and porters are
submitted to severe violations of their right to life, personal security,
freedom from torture and other elementary human rights.
Although Burma has not ratified the Geneva Conventions nor their Additional
Protocols, Common Article 3 is widely recognised by the international legal
community as having the status of jus cogens, i.e. a peremptory norm of
international law[10]. Its provisions thus fully apply to the protection of
porters forcibly recruited for civilian service in the context of armed
operations. The notion that forced porters in Burma are "civilians", as
defined by the Geneva Conventions - particularly under Art 50(1) of
Protocol Additional I - has been sufficiently established, both in fact and
in law[11]. By carrying food and ammunition for SLORC's soldiers under the
latter's compulsion, forced porters can only be seen as forming part of
labour units, which are considered as civilians under the above-mentioned
provisions.
3. Forced Portering and ILO Standards
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Footnotes:
[1] i.e. by ILO Conventions no.29 and 105 on Forced labour, 1930 and on the
Abolition of Forced Labour, 1957, respectively, as well as by the (Geneva)
Slavery Convention, 1926 and Supplementary Convention on the Abolition of
Slavery, the Slave Trade, and Institutions and Practices Similar to
Slavery, 1956. (see EU Regulation no 3281/94, applying "a four year scheme
of generalized tariff preferences (1995 to 1998) in respect of certain
industrial products originating in developing countries.
[2] Burmese term for "Army", ed.note
[3] see: Interim Report on Myanmar by the Special Rapporteur on Myanmar of
the UN Commission on Human Rights, UN General Assembly, November 1993, UN
doc no A/48/578 at sec 22.
[4] ibid, at sec 35.
[5] ibid, at sec 36.
[6] see:"Forced labour in Burma, A Collection of Documents, 1987-1995",
obtainable from Burma Peace Foundation, 6th Floor, 777, UN Plaza, New York,
N.Y. 10017, USA, tel.:(+1-212)338.0048. fax 692.97 48: note: the
Introduction to this dossier, i.e. a 14 pages commented description of
contents, is enclosed as Appendix H to the present report.
[7] see, for example, Reports on the observance of Convention no29. ILO
Committee of Experts on the Application of Conventions and Recommendations,
Convention no29, Geneva, JUne 1991 and JUne 1992.
[8] In particular, Common Article 3 to the four Geneva Conventions, 1949
provides, i.a.: "In the case of armed conflict not of an international
character ....persons taking no active part in the hostilities... shall in
all circumstances be treated humanely...(...) To this end, the following
acts are and shall remain prohibited at any time and in any place
whatsoever with respect to the above-mentioned persons:
(a) violence to life and persons, in particular murders of all kinds,
mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading
treatment;;
[9] According to sources quoted by Asia Watch (now Human Rights
Watch/Asia), porters "have been made to dress in army uniforms and patrol
an area while unarmed to serve as walking targets for the guerrilas", see
"Human Rights in Burma(MYanmar)", Asia Watch, N.Y. May 1990, p.27 (pp 21-31
of this report included herewith as Appendix C.)
[10] As defined by the Vienna Convention of 1969:"... a norm accepted and
recognised by the international community of States as a whole as a norm
from which no derogation is permitted..."(Article 53, Vienna Convention on
the Law of Treaties, 1969);
see also, for the status of Common Article 3 as forming part of jus cogens:
"International Humanitarian Law and the Armed Conflicts in El Salvador and
Nicaragua", in: American University Journal of International Law and
Policy, Vol 2, No2, Fall 1987, at 542 no7, as quoted by Asia Watch (see
previous note.).
[11] see same report by Asia Watch, pp. 26-28.
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