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ILO REPORT ON FL IN BURMA: SLICE 2



[ILO COMMISSION OF INQUIRY ON FORCED LABOUR IN BURMA, SLICE 2]
 
 
                             PART II
 
               PROCEDURE FOLLOWED BY THE COMMISSION
 
 
2. FIRST SESSION OF THE COMMISSION
 
(1) SOLEMN DECLARATION MADE BY THE MEMBERS OF THE COMMISSION
 
10. The Commission held its First Session in Geneva on 9 and
10 June 1997. At the beginning of its First Session, on 9 June
1997, each member of the Commission made a solemn declaration
in the presence of the Director-General of the International
Labour Office. In inviting the members of the Commission to
make this declaration, the Director-General recalled the
circumstances according to which the Commission was
established and stressed that the Commission's task was "to
ascertain the facts and to examine the issues arising in this
case without fear or favour and in complete independence".
 
11. The members of the Commission then each made the following
declaration:
 
     "I solemnly declare that I will honourably, faithfully,
impartially and conscientiously perform my duties and exercise
my powers as a member of the Commission of Inquiry appointed
by the Governing Body of the International Labour Office at
its 268th Session (March 1997) under article 26 of the
Constitution of the International Labour Organization to
examine the observance of the Forced Labour Convention, 1930
(No. 29), by Myanmar".  
 
 
(2) ADOPTION OF THE PROCEDURE TO BE FOLLOWED BY THE COMMISSION
 
12. The ILO Constitution does not lay down rules of procedure
to be followed by a Commission of Inquiry appointed under
article 26. When the Governing Body decided in March 1997 to
refer the complaint to a Commission of Inquiry, it also
specified that the Commission was to determine its own
procedure in accordance with the provisions of the
Constitution and the practice followed by previous commissions
of inquiry.
 
13. In determining its procedure, the Commission recalled
certain elements which characterized the nature of its work.
As earlier commissions of inquiry had stressed, the procedure
provided for in articles 26 to 29 and 31 to 34 of the
Constitution was of a judicial nature.(3)  Thus, the rules of
procedure had to safeguard the right of the parties to a fair
procedure as recognized in international law.
 
14. Furthermore, the Commission considered that its role was
not to be confined to an examination of the information
furnished by the parties themselves or in support of their
contentions. The Commission would take all necessary measures
to obtain as complete and objective information as possible on
the matters at issue. 
 
15. Finally, the Commission was aware that its procedure had
to ensure that the complaint would be examined expeditiously,
avoiding undue delay and thereby ensuring a fair procedure.
 
16. Bearing these considerations in mind, the Commission
adopted the rules of procedure which it intended to follow
during the Second Session for the hearing of witnesses. These
rules were brought to the attention of the Government of
Myanmar and the complainants.(4) 
                       
 
(3) COMMUNICATION OF ADDITIONAL INFORMATION 
 
17. The Commission examined the information submitted by the
complainants and by the Government of Myanmar and took a
series of decisions on the procedural arrangements for the
examination of the questions at issue. 
 
18. It decided to invite the complainants to communicate to
it, before 15 August 1997, any additional information or
observations, including any information on developments
subsequent to the submission of the complaint. The Commission
also invited the Government of Myanmar to communicate before
30 September 1997 any written statement it might wish to
present. The Government and the complainants were informed
that the substance of all information submitted to the
Commission would be communicated to the other party to the
proceedings.
 
19. Pursuant to article 27 of the ILO Constitution and in
accordance with the practice of earlier commissions of
inquiry, the Commission invited the governments of countries
located in the South-East Asian region or having economic
relations with Myanmar to make available to it any information
in their possession bearing upon the subject-matter of the
complaint.(5) 
 
20. Furthermore, the opportunity of presenting information
relevant to the matters raised in the complaint was also
offered to several intergovernmental organizations,(6)  to
international and national workers' and employers'
organizations,(7)  as well as to a number of non-governmental
organizations operating in the legal and human rights
spheres.(8)  In addition, companies mentioned in the
complaint(9)  were also given the opportunity to submit
information on the subject-matter of the complaint.
 
21. The Commission notified the governments, organizations and
companies concerned that the substance of the information
submitted by them would be transmitted to the Government of
Myanmar and the complainants.
 
22. Finally, as regards any material submitted by governments,
organizations or individuals that had not been invited to do
so, the Commission requested its Chairperson to decide on a
case-by-case basis the measures to be taken.
 
                       
 
(4) MEASURES ADOPTED WITH A VIEW TO THE SECOND SESSION AND THE 
    SUBSEQUENT WORK OF THE COMMISSION
 
23. The Commission decided to hold its Second Session in
Geneva from 17 to 20 and 25 to 26 November 1997.
 
24. In communications dated 13 and 16 June 1997, the
Commission invited the Government of Myanmar and the
complainants to communicate before 30 September 1997 the names
and description of any witnesses whom they wished the
Commission to hear with an indication of the points on which
it was desired to adduce evidence of each of the persons
concerned. The Commission informed the parties that on the
basis of the information thus obtained, it would decide
whether to hear each of the witnesses in question.
 
25. In addition, the Commission drew the complainants' and the
Government's attention to the fact that information about each
witness would be disclosed to the other party in the absence
of an application requesting confidentiality pursuant to Rule
7 of the Rules for the hearing of witnesses. If such an
application were filed, it would be heard at the beginning of
the Commission's hearing of witnesses. In the meantime, the
points of evidence would nevertheless be disclosed to the
other party. The Government of Myanmar was requested to assure
in all cases that it would not obstruct the attendance and
giving of evidence by witnesses and that no sanction or
prejudice to witnesses or their families would occur as a
consequence of them appearing or giving evidence.
 
26. The Commission asked the Government of Myanmar and the
complainants to designate representatives to act on their
behalf before the Commission. The complainants were also
requested to consider the possibility of a joint
representation.
 
27. Finally, the Commission authorized its Chairperson to deal
on its behalf with any questions of procedure that might arise
between sessions, with the possibility of consulting the other
members whenever he might consider it necessary.
 
                    ************************
                   
 
3.  COMMUNICATIONS RECEIVED BY 
    THE COMMISSION FOLLOWING ITS    
    FIRST SESSION
              
 
28. Further to the requests addressed by the Commission to the
Government of Myanmar, the complainants and the governments,
organizations and companies referred to in paragraphs 19 and
20 above, the Commission received a number of communications,
as set out in the present chapter. The Commission's analysis
of factual information submitted is reflected in Part IV of
the report (see below Chapter 12). The list of documents
received by the Commission following its First Session is
reproduced in Appendix IV to this report.
 
 
(1) COMMUNICATIONS RECEIVED FROM THE PARTIES
 
(a) Communications from the complainants 
 
29. In communications received by the secretariat in the
course of the months of July to October 1997, all the
complainants informed the Commission of their wish to transfer
all necessary powers to Mr. Bill Jordan, General Secretary of
the International Confederation of Free Trade Unions (ICFTU),
and/or to any person or persons whom he might wish to appoint
for the purpose of representing him at any stage of the
procedure before the Commission.
 
30. In a communication dated 11 August 1997, the ICFTU
submitted on behalf of the complainants additional information
on the occurrence of forced labour in Myanmar.(10)  The
information included two ICFTU reports, entitled "Burma:
SLORC's private slave camp"(11)  and "Forced labour in Burma:
An international trade union briefing";(12) several documents
relating to the withdrawal of trade preferences from Myanmar
by the European Community;(13)  two reports from the Mon
Information Service entitled "Forced labour on the Ye-Tavoy
railway and The situation of people living in the gas pipeline
project region";(14)  a report from Images Asia entitled
"Nowhere to go";(15)  and a copy of a letter from the ICFTU to
the complainants dated 14 July 1997.(16) 
 
31. In a communication dated 30 September 1997 regarding the
November hearings, Mr. Bill Jordan, General Secretary of
the ICFTU, submitted on behalf of the complainants a
preliminary list of 13 witnesses who could be available to be
heard. The letter also indicated that an application for
protective measures pursuant to Rule 7 of the "Rules for the
hearing of witnesses"(17)  would be made on behalf of several
of the witnesses. The letter further indicated that the ICFTU
would like to present to the Commission by 31 October 1997
further information concerning the witnesses, and requested
the Commission to grant such an extension to the deadline for
submitting information regarding witnesses.
 
32. In a further communication dated 14 November 1997, Mr.
Bill Jordan submitted on behalf of the complainants a revised
list of 13 witnesses, with names and descriptions. The letter
also specified measures of protection sought for a number of
the witnesses.
 
 
(b) Communications from the Government of Myanmar 
 
33. In a communication dated 10 November 1997, the Government
of Myanmar indicated that a High Level Coordination Committee
comprising representatives from several ministries and
governmental bodies had been set up, and that the Department
of Labour would serve as secretariat to this Committee. This
Committee had been set up to examine the substance of the
communications received by the Commission from solicited
sources, the majority of which had been forwarded to the
Government in August. The Government noted that as this
evidence was so vast and extensive the examination would take
some time and thus it would not be ready to provide names of
witnesses as requested. It indicated, however, that the
Department of Labour would respond to questions on a
case-by-case basis.
 
***********************
 
(2) COMMUNICATIONS RECEIVED FROM OTHER SOURCES
 
(a) Communications from member States under article 27 of the
ILO Constitution 
 
34. The Governments of Canada (communication dated 24 July
1997),(18)  India (communication dated 27 August 1997),(19) 
Malaysia (communication dated 18 August 1997),(20)  New
Zealand (communication dated 15 August 1997),(21)  Singapore
(communication dated 5 July 1997)(22)  and Sri Lanka
(communication dated 31 July 1997)(23)  indicated that they
had no information relevant to the complaint before the
Commission.
 
35. In a communication received on 14 August 1997, the
Government of the United States submitted a large number of
documents which provided information on the matters raised in
the complaint. The letter indicated that the information had
been compiled from public hearings on the subject of forced
labour in Myanmar held by the United States Department of
Labor in conjunction with the United States Department of
State on 27 June 1997. The information submitted included the
transcript of those hearings, the prepared statements of the
witnesses and all other information submitted for the record,
including written testimony, photographs and video tapes.(24) 
 
 
(b) Communications from intergovernmental organizations 
 
36. In a communication dated 30 July 1997, the European
Commission recalled that a Council Regulation of 24 March 1997
had temporarily withdrawn the benefit of the Community's
Generalized Scheme of Preference from Myanmar, for reasons
relevant to the complaint before the Commission. A copy of
this Council Regulation was provided.(25) 
 
37. In a communication dated 6 August 1997, the Office of the
United Nations High Commissioner for Refugees (UNHCR)
provided comments and observations on the subject of forced
labour in Myanmar's Rakhine State.(26) 
 
 
(c) Communications from non -governmental organizations 
 
38. In a communication dated 13 August 1997, Amnesty
International submitted information to the Commission on
matters relevant to the complaint, including 15 documents
published by Amnesty International between 1988 and 1997.(27) 
The communication noted that Amnesty International had been
investigating the practice of forced labour and forced
portering in Myanmar for ten years, and that since the
organization had not been allowed access to Myanmar, the
information had been collected through interviews with persons
who had left Myanmar.
 
39. In a communication dated 14 August 1997, Anti-Slavery
International submitted a publication entitled "Ethnic groups
in Burma".(28) 
 
40. In a communication dated 13 August 1997, the Australian
Council for Overseas Aid (ACFOA) submitted an excerpt from
the US Embassy's July 1996 "Country commercial guide for
Myanmar",(29)  a publication entitled "Holidays in
Burma?",(30) an ACFOA report entitled Slave labour in
Burma,(31)  and several transparencies allegedly showing
forced labour in Myanmar.(32) 
 
41. In a communication dated 30 July 1997, Burma Action Group
submitted several documents relating mainly to the use of
forced labour in connection with tourism.(33) 
 
42. In a communication dated 10 August 1997, Burma Centrum
Nederland submitted 18 documents from a number of sources
regarding forced labour in Myanmar's Rakhine State.(34) 
 
43. In a communication dated 28 August 1997, Burma Issues
suggested that the Commission contact the Burma Peace
Foundation, to whom the organization had provided relevant
information in its possession.(35) 
 
44. In two communications dated 7 July 1997 and 14 August
1997, the Burma Peace Foundation submitted several thousand
pages of information from a large number of sources relating
to all aspects of the complaint, including a large number of
photographs. Most of the information related to the period
from 1995 to August 1997.(36) 
 
45. In a communication dated 12 August 1997, the Burma UN
Services Office provided two reports (entitled "Forced labor
and Child labor")(37)  prepared by its Human Rights
Documentation Unit and containing information on matters
relevant to the complaint. The letter indicated that the
reports were based on information provided by organizations
which had been monitoring the human rights situation in
Myanmar through the Thai-Myanmar border. The letter also
indicated that the said Human Rights Documentation Unit would
be publishing the "Human Rights Yearbook on Burma 1996", which
would include a chapter on forced labour, and that a copy of
this book would be sent to the Commission.(38) 
 
46. In a communication dated 10 August 1997, Earth Rights
International submitted two reports regarding forced labour in
the Tanintharyi (Tenasserim) Division, entitled "The Yadana
gas pipeline project and The Ye-Tavoy railway".(39) 
 
47. In a communication dated 26 August 1997, the International
Federation of Human Rights Leagues (FIDH) submitted a
report regarding human rights abuses in relation to the Yadana
gas pipeline project entitled "La Birmanie, TOTAL et les
droits de l'Homme: dissection d'un chantier".(40) 
 
48. In a communication dated 16 July 1997, the Friends World
Committee for Consultation (Quakers) submitted a report by
Images Asia entitled "No childhood at all", regarding child
soldiers in Myanmar.(41) 
 
49. In a communication dated 15 August 1997, Human Rights
Watch/Asia submitted a copy of the prepared statement made
by its Washington director before the United States hearings
mentioned above (see above paragraph 35);(42)  a recent report
on the human rights situation in Myanmar entitled "No safety
in Burma, no sanctuary in Thailand";(43) and transcripts of
interviews by Human Rights Watch with five persons from
Myanmar conducted in Thailand in June 1997.(44) 
 
50. In a communication dated 13 August 1997, Images Asia
submitted four reports and two video documentaries containing
information on matters relevant to the complaint;(45)  a video
address by Daw Aung San Suu Kyi to the European Union
regarding labour practices in Myanmar and the transcript of
that address;(46)  copies of a number of orders from the
authorities mostly having to do with the requisition of labour
obtained by Images Asia dated between 1992 and 1997;(47)  and
a number of other reports containing relevant information
relating to the Chin, Kayah, Mon and Shan States and the
Tanintharyi (Tenasserim) Division.(48) 
 
51. In a communication dated 10 August 1997, the Karen Human
Rights Group submitted a detailed summary of practices
relevant to the complaint entitled "Forced labour in
Burma",(49) analyses of portering and child labour in
Myanmar,(50)  as well as 15 recent Karen Human Rights Group
reports on the situation in the country.(51) 
 
52. In a communication dated 17 July 1997, Project Maje
submitted a report detailing human rights abuses by specific
military units in Myanmar, as well as several other recent
reports from various organizations.(52) 
 
 
(d) Communications from companies mentioned in the complaint 
 
53. In a communication dated 19 July 1997, Yukong Limited
indicated that it had operated a block in Myanmar for three
years and a few months from October 1989. According to the
company's record, it did not drill a well in Htaw Tha village
as alleged in the complaint. The company had moreover nothing
to do with the construction of roads in Myanmar and was
therefore not involved in building the road between Monywa and
Khamti as alleged in the complaint.(53) 
 
54. In a communication dated 11 August 1997, TOTAL provided
comments on the complaint before the Commission.(54) 
Regarding work conditions, the communication noted that the
gas pipeline was built by internationally renowned companies
employing as many local workers as possible, thus making
significant resources available to communities in the area. It
indicated also that those companies offered work conditions
equivalent to the conditions applied by TOTAL in all parts of
the world, and that local employees were paid considerably
more than the local wage average, with payment carried out
under its supervision. The communication also noted that TOTAL
and its partners had in 1995 decided to launch a large-scale
socio-economic programme for the local communities. In
response to the complaint before the Commission, the
communication stated that the text repeated a number of
unfounded allegations to which TOTAL had already replied in
the course of the past years. One such reply, in the form of a
letter from TOTAL to FIDH, was appended. The communication
also indicated that there were a great number of minor as well
as very serious factual errors in the text of the complaint.
In particular, it pointed out that there was no connection
between the pipeline and the Ye-Dawei (Tavoy) railroad, and
that no communities had been displaced in the pipeline area
since the initial contract was signed in 1992. It also drew
the Commission's attention to articles written by 15
journalists, which were appended to the communication. Also
appended were a copy of the TOTAL Myanmar Code of Conduct;
procedures for land compensation; and a brochure entitled "The
Yadana project". The communication further indicated that
TOTAL remained at the Commission's disposal for any
supplementary information and would be willing to meet the
members of the Commission, if they so wished.
 
                  ***************************
                                             
________________________
 
NOTES
 
3.  See Report of the Commission Appointed under Article 26 of
the Constitution of the International Labour Organisation to
Examine the Complaint Filed by the Government of Ghana
concerning the Observance by the Government of Portugal of the
Abolition of Forced Labour Convention, 1957 (No. 105), (1962)
"Official Bulletin", Vol. XLV, No. 2, Supplement II, para.15;
Report of the Commission Appointed under Article 26 of the
Constitution of the International Labour Organisation to
Examine the Complaint Filed by the Government of Portugal
concerning the Observance by the Government of Liberia of the
Forced Labour Convention, 1930 (No. 29), (1963) Official
Bulletin, Vol. XLVI, No. 2, Supplement II, para. 381; Report
of the Commission Appointed under Article 26 of the
Constitution of the International Labour Organisation to
Examine the Complaints concerning the Observance by Greece of
the Freedom of Association and Protection of the Right to
Organise and Collective Bargaining Convention, 1949 (No. 98),
Made by a Number of Delegates to the 52nd Session of the
International Labour Conference, (1971) "Official Bulletin",
Vol. LIV, Special Supplement, No. 2, Appendix IV, para. 8;
Report of the Commission instituted under article 26 of the
Constitution of the International Labour Organisation to
examine the complaint on the observance by Poland of the
Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), and the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98), presented by
delegates at the 68th Session of the International Labour
Conference, (1984) "Official Bulletin", Vol. LXVII, Special
Supplement, Series B, para. 5; Report of the Commission of
Inquiry appointed under article 26 of the Constitution to
examine the observance by Nicaragua of the Freedom of
Association and Protection of the Right to Organise
Convention, 1948 (No. 87), the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98), and the
Tripartite Consultation (International Labour Standards)
Convention, 1976 (No. 144), (1991) "Official Bulletin", Vol.
LXXIV, Supplement 2, Series B, para. 5; Report of the
Commission of Inquiry appointed under article 26 of the
Constitution of the International Labour Organisation to
examine the observance by Romania of the Discrimination
(Employment and Occupation) Convention, 1958 (No. 111), (1991)
"Official Bulletin", Vol. LXXIV, Supplement 3, Series B, para.
4. 
 
4.  The text of these rules is appended to the present report
(Appendix III). 
 
5.  An invitation was sent to the Governments of the following
countries: Australia, Bangladesh, Cambodia, Canada, China,
France, India, Indonesia, Japan, Republic of Korea, Lao
People's Democratic Republic, Malaysia, New Zealand, Papua New
Guinea, Philippines, Singapore, Sri Lanka, Thailand, United
States of America and Viet Nam. 
 
6.  The United Nations, including the United Nations High
Commissioner for Refugees; the European Union; the Association
of South-East Asian Nations (ASEAN). 
 
7.  Having consultative status with the ILO: International
Confederation of Free Trade Unions, World Confederation of
Labour, World Federation of Trade Unions, International
Organization of Employers. Others: International Federation of
Agricultural Producers, International Federation of Chemical,
Energy, Mine and General Workers' Unions, Brotherhood of Asian
Trade Unionists, International Union of Food and Allied
Workers' Associations, ASEAN Confederation of Employers,
Federation of Trade Unions of Burma, Union of Myanmar Chamber
of Commerce and Industry.  
 
8.  Non-governmental organizations: Action contre la faim,
Aide Mdicale Internationale, Amnesty International,
Anti-Slavery International, Article 19, Australia Burma
Council, Australian Council for Overseas Aid, Burma Action
Group, Burma Border Consortium, Burma Centrum Nederland, Burma
Donors' Secretariat, Burma Issues, Burma Peace Foundation,
Burmese Relief Centre, Burma UN Services Office, Burmese
Women's Union, Danish Burma Committee, Earth Rights
International, Euro-Burma Office, Friends World Committee for
Consultation (Quakers), Health Unlimited, Human Rights Watch
(Asia), Images Asia, International Commission of Jurists,
International Federation of Human Rights, International Human
Rights Law Group, International League for Human Rights,
International League for the Rights and Liberation of Peoples,
International Rescue Committee, International Work Group for
Indigenous Affairs, Investor Responsibility Research Center,
Jesuit Refugee Service, Karen Human Rights Group, Lawyers'
Committee for Human Rights, Maryknoll Thailand, Mdecins Sans
Fronti
res (France), Mdecins Sans Fronti
res (Holland),
Mdecins Sans Fronti
res (Thailand), Minority Rights Group,
Mon Information Service, Project Maje, Shan Human Rights
Foundation, Southeast Asia Information Network
and Tourism Concern. 
 
9.  TOTAL, UNOCAL Corporation, and Yukong Limited. 
 
10.  Doc. 35. (Documents referred to in this chapter are those
received by the Commission following its First Session and
listed in Appendix IV.) 
 
11.  Doc. 36. 
 
12.  Doc. 45. 
 
13.  Docs. 37-41. 
 
14.  Docs. 42 and 43. 
 
15.  Doc. 44 (same as doc. 125, q.v.). 
 
16.  Doc. 46. 
 
17.  See Appendix III for the text of the Rules. 
 
18.  Doc. 34. 
 
19.  Doc. 159. 
 
20.  Doc. 152. 
 
21.  Doc. 105. 
 
22.  Doc. 2. 
 
23.  Doc. 56. 
 
24.  Docs. 57-84. 
 
25.  Doc. 11. 
 
26.  Doc. 33. 
 
27.  Docs. 85-101. 
 
28.  Doc. 153. 
 
29.  Doc. 101. 
 
30.  Doc. 102. 
 
31.  Doc. 103 (a copy of this document can be found in doc. 1
at p. 227 ff.). 
 
32.  Doc. 104. 
 
33.  Docs. 12-14. 
 
34.  Docs. 106-124. 
 
35.  Doc. 161. 
 
36.  Docs. 1, 154-158. 
 
37.  Docs. 73 and 74. 
 
38.  Doc. 164. 
 
39.  Docs. 162 and 163. 
 
40.  Doc. 160 (English version in doc. 154 at p. 4962 ff.). 
 
41.  Doc. 3. 
 
42.  Doc. 149. 
 
43.  Doc. 150. 
 
44.  Doc. 151. 
 
45.  Docs. 125-128, 131 and 132. 
 
46.  Docs. 129 and 133. 
 
47.  Doc. 130. 
 
48.  Docs. 134-148. 
 
49.  Doc. 32. 
 
50.  Docs. 16 and 21. 
 
51.  Docs. 15, 17-20 and 22-31. 
 
52.  Docs. 6-10. 
 
53.  Doc. 4. 
 
54.  Docs. 48-55. 
 
 
[END OF SLICE 2]