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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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