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ILO: FORCED LABOUR IN BURMA-20



[ILO COMMISSION OF INQUIRY ON FORCED LABOUR IN BURMA, SLICE
20]


                            APPENDICES

                            APPENDIX I

                    
SUPPLEMENTARY EVIDENCE SUBMITTED 
BY THE COMPLAINANTS IN OCTOBER 1996
                 

SUPPLEMENTARY EVIDENCE TO THE COMPLAINT
UNDER ARTICLE 26 OF THE CONSTITUTION OF THE 
INTERNATIONAL LABOUR ORGANIZATION SUBMITTED
ON 20 JUNE 1996 BY THE WORKERS' DELEGATES
TO THE 1996 INTERNATIONAL LABOUR CONFERENCE
AGAINST THE GOVERNMNET OF MYANMAR FOR
NON-OBSERVANCE OF ILO CONVENTION No. 29

(31 OCTOBER 1996)



                             CONTENTS


Table of authorities

I. SUMMARY

A. Factual findings

B. Legal conclusions


II. PRIOR PROCEEDINGS AT THE ILO

A. Review by the Committee of Experts and the Conference
Committee

     1. The Committee of Experts

     2. The Conference Committee

B. The Article 24 Representation


III. FINDINGS OF FACT

A. Forced labour for public purposes

     1. The Government of Myanmar uses forced labour to        
        perform portering, combat, minesweeping and sexual     
        services for military troops

     2. The Government of Myanmar uses forced labour on        
        development and public works projects that are not in  
        the direct interest of the community, and in fact harm 
        community life

          (a) Forced labour practices on development projects  
              are widespread and affect hundreds of thousands  
              of civilians

          (b) Forced labour on development projects is         
              systematic and organized

          (c) Harsh working conditions and human rights abuses 
              are common on development projects

          (d) The practice of forced labour on public          
              development and infrastructure projects harms    
              the social and economic life of the people of    
              Myanmar

          (e) The development and infrastructure projects for  
              which the Government uses forced labour do not   
              benefit the community supplying the forced       
              labour

     3. The Government of Myanmar uses forced labour on        
        military construction projects


B. Forced labour for private benefit

     1. The Government of Myanmar uses forced labour to        
        promote private benefit in joint venture developments, 
        including the country's oil and natural gas reserves

     2. Forced labour is used for the benefit of private       
        investors in development, public works and tourism     
        projects

     3. The Government of Myanmar uses forced labour for the   
        private commercial interests of military members


C. The law of forced labour in Myanmar

     1. Myanmar law provides for forced or compulsory labour   
        to be exacted from the people on pain of penalties

     2. The Government of Myanmar has issued directives that   
        legitimize the practice of forced labour on            
        development projects

     3. The laws authorizing forced labour in Myanmar fall     
        outside the scope of a criminal law punishing the      
        "unlawful" exaction of forced or compulsory labour


IV. CONCLUSIONS OF LAW

A. The practice of forced labour in Myanmar is a breach of its 
   international obligations under Convention No. 29

     1. Myanmar's practice of forced labour breaches its       
        obligations under Convention No. 29

     2. Myanmar's failure to completely suppress forced labour 
        for private benefit violates Convention No. 29

     3. Myanmar's failure in practice to pursue and to punish  
        those who exact forced labour breaches its obligations 
        under Convention No. 29


B. Myanmar's laws do not comply with Convention No. 29

     1. The Government of Myanmar has breached its duty under  
        Convention No. 29 because it has failed to repeal or
        amend its laws that permit the exaction of forced      
        labour

     2. The Government of Myanmar has failed to meet its duty  
        under Convention No. 29 because it has not fully       
        complied with Article 25


C. No permissible exception under Article 2 applies

     1. The forced labour practices do not constitute work or  
        service "exacted in virtue of compulsory military      
        service laws for work of a purely military character"  
        under Article 2(2)(a)

     2. Forced and compulsory labour in Myanmar is not part of 
        the normal civic obligations of the citizenry, within  
        the meaning of Article 2(2)(b) of the Convention

     3. The labour exacted from prisoners does not meet the    
        strict requirements of Article 2(2)(c)

     4. No emergency within the meaning of Article 2(2)(d)     
        exists to permit the forced and compulsory labour that 
        is currently being performed in Myanmar

     5. Forced or compulsory labour in Myanmar goes far beyond 
        the concept of "minor communal service" in Article
        2(2)(e)


D. A transitional period does not apply in this case and, even 
   if a transitional period applied, the Government of Myanmar 
   has failed to demonstrate compliance with the guarantees    
   that govern such a period 

     1. The ILO noted that no transitional period applies to   
        exempt the Government of Myanmar from its obligation   
        under Convention No. 29 to suppress forced labour in   
        all its forms

     2. A transitional period does not apply in the case of    
        Myanmar as a matter of fact or law

     3. Myanmar is bound by its declaration that no            
      transitional period applies

     4. In any event, none of the conditions and guarantees    
        required during the transitional period is satisfied   
        in Myanmar


V. CONCLUSIONS

**********************************

                       TABLE OF AUTHORITIES


ILO DOCUMENTS

    Constitution of the International Labour Organization      
    (1919).

    Convention concerning Forced or Compulsory Labour, 1930    
    (No. 29).


CONFERENCE COMMITTEE DOCUMENTS: RECORDS OF PROCEEDINGS

     International Labour Conference, 83rd Session,            
     "Provisional Record". Report of the Committee on the      
      Application of Standards (Geneva, 1996).

     International Labour Conference, 82nd Session,            
     "Provisional Record". Report of the Committee on the      
     Application of Standards (Geneva, 1995).

     International Labour Conference, 79th Session,            
     "Provisional Record". Report of the Committee on the      
     Application of Standards (Geneva, 1992).


REPORTS OF THE COMMITTEE OF EXPERTS

     International Labour Conference, 83rd Session, Report III 
     (Part 4A) Report of the Committee of Experts (Geneva,
     1996).

     International Labour Conference, 82nd Session, Report III 
     (Part 4A) Report of the Committee of Experts (Geneva,
     1995).

     International Labour Conference, 81st Session, Report III 
     (Part 4A) Report of the Committee of Experts (Geneva,
     1994).

     International Labour Conference, 80th Session, Report III 
     (Part 4A) Report of the Committee of Experts (Geneva,
     1993).

     International Labour Conference, 79th Session, Report III 
     (Part 4A) Report of the Committee of Experts (Geneva,
     1992).

     International Labour Conference, 78th Session, Report III 
     (Part 4A) Report of the Committee of Experts (Geneva,
     1991).

     International Labour Conference, 75th Session, Report III 
     (Part 4A) Report of the Committee of Experts (Geneva,
     1988).


GENERAL SURVEYS OF THE COMMITTEE OF EXPERTS CONCERNING FORCED
LABOUR

     International Labour Conference, 65th Session, Report III 
     (Part 4A) Report of the Committee of Experts, General
     Survey of the reports relating to the Forced Labour       
     Convention, 1930 (No. 29), and the Abolition of Forced    
     Labour Convention, 1957 (No. 105) (Geneva, 1979).

     International Labour Conference, 52nd Session, Report III 
     (Part 4) Report of the Committee of Experts, General
     Survey on the reports concerning the Forced Labour        
     Convention, 1930 (No. 29), and the Abolition of Forced    
     Labour Convention, 1957 (No. 105) (Geneva, 1968).


GOVERNING BODY REPORTS

     "Child labour", ILO doc. GB.265/2 (Geneva, Mar. 1996).

     Report of the Director-General, Second Supplementary      
     Report, Report of the Committee set up to consider the
     representation made by the International Confederation of 
     Free Trade Unions under article 24 of the ILO          
     Constitution alleging non-observance by Myanmar of the    
     Forced Labour Convention, 1930 (No. 29) (Geneva, Nov.     
     1994) ILO doc. GB.261/13/7. 
     Minutes of the 261st Session, ILO doc. GB.261/PV(Rev.)    
    (Geneva, Nov. 1994).


OTHER ILO DOCUMENTS

     International Labour Conference, 82nd Session, Report III 
     (Part 5) List of Ratifications by Convention and by       
     Country (Geneva, 1995).

     International Labour Conference, 52nd Session, Report III 
     (Part 1) Summary of Reports on Ratified Conventions
     (Geneva, 1968).

     International Labour Conference, 48th Session, Report III 
     (Part 1) Summary of Reports on Ratified Conventions
     (Geneva, 1964).

     International Labour Conference, Record of Proceedings,   
    14th Session, (Geneva, 1930).


UN DOCUMENTS


REPORTS OF THE SPECIAL RAPPORTEUR ON THE SITUATION OF HUMAN
RIGHTS IN MYANMAR

     Report of the Special Rapporteur on the situation of      
     human rights in Myanmar, 1996, UN doc. E/CN.4/1996/65 
     (5 Feb. 1996).

     Report of the Special Rapporteur on the situation of      
     human rights in Myanmar, 1995, UN doc. E/CN.4/1995/65 
     (12 Jan. 1995).

     Report of the Special Rapporteur (in the situation of     
     human rights in Myanmar, 1994, UN doc. E/CN.4/1994/57 
     (16 Feb. 1994).

     Report of the Special Rapporteur on the situation of      
     human rights in Myanmar, 1993, UN doc. E/CN.4/1993/37 
     (17 Feb. 1993).


OTHER UN DOCUMENTS

Universal Declaration of Human Rights, UN GA Res. 217A, UN
doc. A/810 (1948).

International Covenant on Civil and Political Rights, UN GA
Res. 2200 adopted 16 Dec. 1966, entered into forced 23 March
1976, UN GAOR 21st Session, Supp. No. 16. UN doc. A/6316.

Report of the Special Rapporteur on torture and other forms of
cruel, inhuman or degrading treatment of punishment, 1994,
UN doc. E/CN.4/1994/31 (6 Jan. 1994).

Report of the Special Rapporteur on extrajudicial, summary or
arbitrary executions, 1994, UN doc. E/CN.4/1994/7 (7 Dec.
1993).


LAWS AND REGULATIONS OF MYANMAR

Villages Act 1908, printed in Burma Code, Vol. VI (1979)
(English and Burmese versions).

Towns Act 1907, printed in Burma Code, Vol. VI (1979) (English
and Burmese versions).

Penal Code, printed in Burma Code, Vol. VIII (1979).

SLORC Law No. 4/93.

SLORC Law No. 1/92.

SLORC Secret Directive No. 125.

SLORC Secret Directive No. 82.

Statements of the Government to UN

Statement by His Excellency U Ohn Gyaw, Chairman of the
Delegation of the Union of Myanmar to the United Nations, New
York (3 Oct. 1995).

Letter dated 18 March 1996 from the Permanent Representative
of the Union of Myanmar to the United Nations Office at
Geneva, Memorandum of observations and comments concerning
document E/CN.4/1996/65 of 5 Feb. 1996 pertaining to
the Union of Myanmar, UN doc. E/CN.4/1996/139 (21 Mar. 1996).

Memorandum of observations and comments submitted by the
Ambassador of the Union of Myanmar to the United Nations,
UN doc. E/CN.4/1996/139 (21 Mar. 1996).

Note Verbale dated 4 Nov. 1994 of the Permanent Mission of the
Union of Myanmar to the United Nations Office at Geneva,
containing the response to the Report of the Special
Rapporteur, 1994, reproduced in the Interim Report of the
Special Rapporteur in UN doc. A/49/594/Add.1 (28 Oct. 1994).


INTERNATIONAL DECISIONS

"Nuclear tests cases" (Australia v. France) (New Zealand v.
France). Judgement of 20 Dec. 1976, ICJ Reports.

"Frontier dispute". Judgement, ICJ Reports, 1986.


TREATISES

Nicolas Valticos, "International labour law" (1979).


FACT-FINDING REPORTS

Amnesty International

     "Portering and forced labour: Amnesty International's     
     concerns", AI: ASA 16/42/96 (Sep. 1996).

     "Myanmar: Human rights after seven years of military      
     rule, AI: ASA 16/23/95 (Oct. 1995).

     "Conditions in prisons and labour camps", AI: ASA         
      16/22/95 (Sep. 1995).

      "Myanmar: "No place to hide: Killings, abductions       
      against ethnic Karen villagers and refugees", AI: ASA
      16/13/95 (June 1995).

     "Human rights still denied, AI: ASA 16/18/94 (Nov. 1994).

     "Myanmar: The climate of fear continues -- Members of     
     ethnic minorities and political prisoners still      
     targeted", AI: ASA 16/06/93.

     "Myanmar: Human rights violations against Muslims in the  
     Rakhine (Arakan) State", AI: ASA 16/06/92 (Oct. 1992).


Anti-Slavery International

     "Ethnic groups in Burma" (1994).


Article 19

     "Burma: Beyond the law" (Aug. 1996).

     "Fatal silence? Freedom of expression and the right to    
     health in Burma" (July 1996).

     "Paradise lost? The suppression of environmental rights   
     and freedom of expression in Burma" (Sep. 1994).


Australian Council for Overseas Aid

     "Slave labour in Burma: An examination of the SLORC's     
     forced labour policies" (May 1996).


Asia Watch

     "Burma: Rape, forced labour and religious persecution in  
     North Arakan State" (May 1992).


Burma Action Group

     "Burma, the alternative guide" (Jan. 1996).

Earth Rights International and Southeast Asian Information
Network

     "Total denial" (July 1996).


Human Rights Watch/Asia

     "Burma: The Rohingya Muslims, ending a cycle of exodus?", 
     Vol. 8, No. 9 (C) (Sep. 1996).

     "Entrenchment or reform? Human rights developments and    
     the need for continued pressure", Vol. 7. No. 10 (July
     1995).

     "Abuses linked to the fall of Manerplaw", Vol. 7, No. 5   
     (Mar. 1995).



Images Asia

     "No childhood at all: A report on child soldiers in       
     Burma" (May 1996).


International Commission of Jurists

     "The Burmese way: To where?" Report of a mission to Burma 
     (Dec. 1991).


Lawyers Committee for Human Rights

     "Summary injustice, military tribunals in Burma" (Apr.    
     1991).


US Committee for Refugees

     "USCR site visit to Bangladesh" (20 June-1 July 1996).


United States Department of State

     "Foreign economic trends report: Burma" (June 1996).


OTHER AUTHORITIES

"John Doe I., etc. et. al., v. Unocal Corp. et. al". Docket
No. 96-6959 LGB (C.D. Cal.), complaint filed in US Federal
Court, 3 Oct. 1996.

"The National Coalition Government of the Union of Burma and
the Federation of Trade Unions of Burma v. Unocal Inc."

Representation under article 24 of the ILO Constitution
against the Government of Myanmar (formerly Burma), for its
violations of the Convention concerning Forced or Compulsory
Labour, 1930 (Convention No. 29 of the International Labour
Organization), ratified by Burma in 1955, submitted by the
International Confederation of Free Trade Unions on 25 Jan.
1993 to the Director-General of the International Labour
Office.

Letter from Beth Stephens, Center for Constitutional Rights,
dated 21 March 1995 to Mr. Roger Beach, CEO, Unocal
Corporation.

"More information construction of Yangon-Mandalay Union
Highway", Myanmar News Agency, 23 Jan. 1996.

Jeremy Mark, "Western firms remain hesitant about investing in
Burma, in contrast to Asians' enthusiasm". Asian Wall Street
Journal, week of 4 Sep. 1995.

David Ivanovich, "Protesters crash Unocal meeting", Houston
Chronicle, 23 May 1995.

"Burma using forced labour on tourist projects", "New York
Times", 17 July 1994.



                            I. SUMMARY


This is presented as supplementary evidence to the complaint
under article 26 of the Constitution submitted on 20 June by
Workers' delegates to the 1996 International Labour Conference
(footnote giving name/country) against the Government of
Myanmar for non-observance of Convention No. 29 on Forced
Labour (1930) which it ratified in 1955. The ILO's prior
proceedings in this matter have included more than 30 years of
review by the Committee of Experts, two special paragraphs
by the Conference Committee, findings of non-compliance with
the Convention by a committee established to examine a
representation under article 24 of the ILO Constitution
("Article 24 Committee") and the subsequent adoption of those
findings by the Governing Body of the ILO.


A. FACTUAL FINDINGS

Myanmar is and has been conducting a widespread practice of
exacting forced labour in the country. The practice, which
affects hundreds of thousands of residents of Myanmar,
involves the use of forced labour for public purposes as well
as for private benefit. The labour is exacted from men, women
and children of villages and towns in various parts of the
country as well as from prisoners. Along with the forced
labour, the military Government of Myanmar ("Government" or
SLORC) is perpetrating severe physical and sexual abuses on
many forced labourers including beatings, rape, executions and
deliberate deprivation of necessary food, water, rest,
shelter, and access to medical care.

Myanmar conducts forced labour practices for public purposes
including the following: (1) portering, combat minesweeping,
and sexual services for military troops; (2) construction and
other heavy labour on development and infrastructure projects
that do not benefit and, most often, harm the population from
which forced labour is exacted; and (3) heavy work on military
construction projects. Myanmar also conducts a practice of
forced labour for private benefit in order to: (1) promote
joint venture developments, including the country's oil and
natural gas reserves; (2) encourage private investment in
infrastructure development, public works, and tourism
projects; and (3) benefit the private commercial interests of
members of the Myanmar military.

Two laws currently in effect in Myanmar authorize forced or
compulsory labour to be exacted from the people and provide
for fines and imprisonment of those who fail to comply. Those
laws, the Villages Act 1908 and Towns Act 1907, fall outside
the scope of a law apparently in effect that makes "unlawful"
exaction of labour a criminal offence. Other recently
uncovered secret military directives implicitly legitimize
forced labour practices on development projects by urging that
payment be made to forced labourers and that the "misery and
sufferings" associated with "undesirable incidents" during
forced labour be curbed.


B. LEGAL CONCLUSIONS

Myanmar has failed entirely to secure the effective observance
of Convention No. 29. It deliberately engages in the practice
of forced labour within the meaning of the Convention and
commits gross human rights abuses in the context of that
practice. It has refused to repeal laws that authorize the
practice or to properly make the exaction of forced labour a
penal offence. It further has refused to ensure that penalties
imposed by law are really adequate and strictly enforced as
required by the Convention.

The Government has sought to characterize the arrests and
practice of forced labour under menace of threats, abusive
practices, fines, and imprisonment as the voluntary
contribution of the people of Myanmar pursuant to Buddhist
cultural tradition. The evidence demonstrates not only that
non-Buddhist minorities are at times subjected
disproportionately to forced labour requirements, but also
that the practice is conducted under threat of legal penalties
and use of physical force.

The Government has represented that it will use only armed
forces henceforth on, in its words, "major community
development projects". That representation provides no
assurances that the Government will stop the use of forced
labour on other projects, including support and portering
services for the military, or that forced labour on "major
projects" could not resume at any time.

None of Myanmar's forced labour practices qualifies as an
exception from the Convention's general prohibitions on the
use of forced or compulsory labour. The practices fail to
satisfy any of the following five narrow exceptions allowed
under the Convention: compulsory military service; normal
civic obligations; labour as punishment for duly convicted
prisoners; circumstances of emergency threatening the
population; and minor communal service. In addition, whether a
forced labourer is paid makes no difference to the
determination of whether the conduct qualifies under any of
the five exceptions, despite the fact that the Government has
sought to defend its practices by alleging that its forced
labourers are paid.

No transitional period applies to exempt Myanmar from its
obligation under Convention No. 29 to suppress forced labour
in all its forms. The Committee established by the ILO to
review the ICFTU's Article 24 Representation on forced
portering in Myanmar determined that no transitional period
applied. That finding is amply supported as a matter of fact
and law. The 40 years since Myanmar ratified the Convention
constitutes more than ample time to make required alterations
to law and practice to conform to the Convention's
requirements. Moreover, the Government itself has admitted
that no transitional period applies; such admissions were made
in the article 24 proceeding and recently in its observations
made to the United Nations relating to reports of forced
labour practices.

Finally, even if a transitional period applied in this case,
the evidence demonstrates that none of the conditions and
guarantees required to be met during the transitional period
is satisfied in Myanmar. Forced labour is used for private
benefit; forced labor is used widely and systematically as a
regular part of the Government's budget; and the practice of
forced labour is in no way limited to use as an exceptional
measure. Further breaches of the conditions and guarantees
required under the transitional provisions of the Convention
include inadequate or non-existent regulation of forced labour
practices; work that is not of important direct interest for
the community from whom the labour is exacted and that is not
of imminent necessity; work that lays too heavy a burden on
the population; forced labour exacted as a tax without the
safeguards required by the Convention, including allowing the
forced labourers to remain at their habitual residence and
respecting religion, social life, and agriculture;
conscripting women, children, and men over 45 into forced
labour; failing to limit forced labour duty to 60 days per
year; failing to provide cash remuneration in rates of pay
equal to the prevailing wage for voluntary labour and failing
to observe normal working hours and a weekly day of rest;
failing to apply workers' compensation laws and, in any case,
meeting the responsibility of maintaining the subsistence of
any person incapacitated as a result of performing forced
labour; ensuring that people are not moved to different parts
of the country in which their health may be affected or, where
that is necessary, ensuring gradual acclimatization; for
extended periods of forced labour, ensuring appropriate
medical care and subsistence of the workers' families and
providing for the cost of the workers' journeys to and from
the workplace; and abolishing forced portering "within the
shortest possible period" after ratification.

Based on the presentation of the facts and discussion of the
law in this complaint, the complainants urge that the
Governing Body establish a Commission of Inquiry to consider
the complaint and to report on the situation in Myanmar. The
complainants further recommend that, if established, the
Commission of Inquiry should insist on procedures that ensure
the safety of witnesses and their families. The complainants
request that the Commission of Inquiry make factual findings
and draw legal conclusions consistent with those in the
complaint, and recommend that Myanmar take immediate remedial
measures to comply with and respect the terms of Convention
No. 29. 

[END OF SLICE 20]