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ANALYSIS OF THE REPORT OF THE ILO T



AN ANALYSIS OF THE
REPORT OF THE ILO TECHNICAL COOPERATION MISSION TO MYANMAR

The report is in PDF format on the ILO website at:

http://www.ilo.org/public/english/standards/relm/ilc/ilc88/pdf/pr-8.pdf

Most of the other relevant ILO documents can be found on
http://www.ilo.org/public/english/standards/relm/gb/docs/gb277/index.htm#GB

The Report of the Commission of Inquiry is on
http://www.ilo.org/public/english/standards/relm/gb/docs/gb273/myanmar.htm



BACKGROUND

An ILO technical cooperation mission visited Burma between 22 and 27 May 
2000 "to establish with the government a credible plan of action to ensure 
the full implementation of the commission's recommendations" (ILO 
Director-General Juan Somavia, in ILO Press Release, 23 May 2000, enclosed 
below as Appendix 1), and to report back to the International Labour 
Conference meeting in Geneva. The Conference has on its agenda an item 
entitled  "Action recommended by the Governing Body under article 33 of the 
Constitution - Implementation of the recommendations contained in the 
report of the Commission of Inquiry entitled Forced Labour in Myanmar 
(Burma)". In its Selection Committee and in the Plenary, the Conference 
will debate imposing on Burma the punitive measures recommended by the 
ILO's Governing Body (see Appendix 2 for text of the GB's recommendations).

The sending of the technical cooperation mission, strongly urged by 
Malaysia, Japan and other Asian countries, was a last-ditch effort to get 
Burma to cooperate with the ILO in implementing the recommendations of the 
ILO Commission of Inquiry (see Appendix 3 for text) and therebye possibly 
escape the sanctions which these countries consider a bad precedent as well 
as disrupting their commercial and other relations with Burma.


NO CREDIBLE PLAN OR CONCRETE AND SPECIFIC MEASURES

The report of the mission, a masterpiece of diplomatic understatement, 
makes it quite clear that the regime failed to come up with any concrete 
commitments or plan of action, credible or otherwise, to tackle forced 
labour in the country.

The mission repeatedly stressed to its "government" interlocutors the need 
for CONCRETE, SPECIFIC, TANGIBLE, PRECISE and CREDIBLE measures to 
implement the recommendations of the Commission of Inquiry (In the 12-pages 
of the report - not counting the Appendices - I counted 7 instances of 
"specific", 8 of "concrete", 3 of "tangible", 12 of "credible/credibility 
and 4 of "precise".) What it got in reply was denial that forced labour 
exists in Burma, along with vague generalities about "willingness" and 
undefined "commitment" to deal with the "allegations" of forced labour, but 
no concrete measures whatsoever. This in spite of the mission's emphasis 
that, "in order to convince the Conference, the results would have to be 
concrete and precise and involve a commitment by the authorities at the 
highest level".

On page 11 of the report, "The mission's conclusions", para 1, we read 
that: "The letter from the Minister of Labour to the Director-General 
constitutes, in a way, the results of the mission".  When we turn to the 
letter (reproduced below as Appendix 4) we find the same old tired list of 
vague assurances and generalities the ILO has been hearing for the last 
decade or more.

The Minister?s letter contrasts starkly with the mission?s concrete 
suggestions  regarding amendment of the Village and Towns Acts; the issuing 
of instructions to the Army not to requisition forced labour; a possible 
ILO presence in the country etc (see Appendix 5, the mission?s Conclusions)


DENIAL AT THE HIGHEST LEVEL

Regarding the commitment of those "at the highest level", we find a uniform 
denial of the very existence of forced labour in the country. The mission 
met three senior officials: Colonel Tin Hlaing, Home Minister, "denied that 
there were any such practices [forced labour] at present"; Mr Win Aung, 
Minister of Foreign Affairs "rejected the accusations of forced labour". 
And in the report of the meeting with Secretary-1, regarded by many as the 
Strongman of the regime, we read that "... Although he acknowledged that 
there might have been recourse to so-called forced labour when work was 
being carried out on the infrastructure, these practices had ceased before 
the ILO report had been concluded".

This statement denies the findings of the ILO follow-up reports of 1999 and 
2000  that forced labour had not ceased following the publication of the 
report of the  Commission of Inquiry:

http://www.ilo.org/public/english/standards/relm/gb/docs/gb276/gb-6.htm

http://www.ilo.org/public/english/standards/relm/gb/docs/gb277/myan2000.htm

It also makes nonsense of the condition under which the mission was sent, 
namely that "the sole object of such a mission would be to provide direct 
assistance to implement immediately the recommendations of the Commission 
of Inquiry..." (page 1, para 1). If forced labour no longer exists, there 
is clearly no point in requesting assistance to implement the recommendations.

It is unlikely that such denials and vague promises will convince the 
Conference that Burma is willing to cooperate with the ILO to tackle the 
problem of forced labour.


David Arnott, Geneva, 3 June 2000


APPENDIX 1

ILO PRESS RELEASE OF 23 MAY

Public information

ILO mission opens talks with Government in Myanmar (Burma)

Tuesday 23 May 2000
( ILO/00/18 )

GENEVA (ILO News) - A technical cooperation mission of the International 
Labour Office (ILO) is expected to begin discussions on Wednesday in 
Yangon, Myanmar (Burma) with the Government of Myanmar on the 
implementation of the recommendations of a 1998 Commission of Inquiry *, 
which found the use of forced and compulsory labour in that country to be 
widespread.

The Director-General of the International Labour Office, Mr. Juan Somavia, 
underlined in a recent letter to the Department of Labour of Myanmar 
(Burma) that this technical cooperation effort is to be based on the 
conclusions and the recommendations of the 1998 Commission.

In a statement in Geneva today, Mr. Somavia stressed that "the sole purpose 
of the visit of the team is to establish with the Government a credible 
plan of action to ensure the full implementation of the Commission's 
recommendations."

This Commission, which examined over 6,000 pages of documents and heard 
testimony from hundreds of persons, many with eye-witness experience of 
forced labour practices, recommended that the Government take the following 
steps:

" that legislation, in particular the Village and Towns Acts, be brought 
into line with the terms of the Forced Labour Convention, 1930 (No. 29), 
which Myanmar (Burma) has ratified;

" that no more forced or compulsory labour be imposed by the authorities, 
particularly by the military;

" that penalties which may be imposed for the exaction of forced labour be 
strictly enforced, with thorough investigation, prosecution and adequate 
punishment of those found guilty, in conformity with article 25 of the ILO 
Convention.

Following a series of communications with the ILO, the Government of 
Myanmar (Burma) has provided assurances that the mission will be given full 
cooperation to effectively carry out its responsibilities.

The implementation of the recommendations of the Commission of Inquiry on 
Forced Labour in Myanmar (Burma) has been discussed by the Governing Body 
of the ILO on several occasions. At its most recent session in March, the 
Governing Body invoked article 33 of the Constitution, recommending that 
the International Labour Conference "take such action as it may
deem wise and expedient to secure compliance" if a government fails to 
comply with the recommendations of a Commission of Inquiry. The decision to 
invoke article 33 and place such an item on the agenda of the International 
Labour Conference was unprecedented in the ILO's history.

The Governing Body has formulated a set of measures, which are to be 
presented to the International Labour Conference. It is expected that the 
current mission will also report to the Conference, which will meet in 
Geneva from 30 May to 15 June 2000.

The mission to Myanmar (Burma) is led by Mr. Francis Maupain, Special 
Adviser to the ILO Director-General and will include officials from the ILO 
headquarters in Geneva and from its regional office in Bangkok.

* * * * *

* Forced labour in Myanmar (Burma). Report of the Commission of Inquiry 
appointed under article 26 of the Constitution of the International Labour 
Organization to examine the observance by Myanmar of the Forced 
Labour  Convention, 1930 (No. 29), Geneva, 1998.



APPENDIX 2

Recommended action by the ILO Governing Body

According to article 33 of the Constitution of the
International Labour Organization:
In the event of any Member failing to carry out within
the time specified the recommendations, if any, contained
in the report of the Commission of Inquiry, or in
the decision of the International Court of Justice, as the
case may be, the Governing Body may recommend to the
Conference such action as it may deem wise and expedient
to secure compliance therewith.

Some indication regarding the scope of article 33 of
the Constitution and the type of action that may be
taken in application of that article is given in the extracts
from the report submitted to the 277th Session
of the Governing Body which are reproduced in the
present report.

In accordance with this article of the Constitution,
the Governing Body adopted the following resolution:
The Governing Body of the ILO,


Recalling the discussions held at the 273rd, 274th and
276th Sessions of the Governing Body on the implementation
of the recommendations of the Commission of Inquiry
established under article 26 of the Constitution of
the ILO to examine the observance by Myanmar of the
Forced Labour Convention, 1930 (No. 29),

Noting that the Government of Myanmar has so far
not complied with the recommendations of the Commission
of Inquiry, despite the disapproval that the gravity of
the Government?s failure to act must inspire in everyone?s
conscience and the imperative need to put an end
to this situation by every appropriate means as soon as
possible,

Noting the provisions of article 33 of the Constitution
of the ILO;

Recommends to the International Labour Conference,
meeting at its 88th Session (May-June 2000), that it
adopt measures including some or all of the following:
(a) to decide that the question of the implementation of
the Commission of Inquiry?s recommendations and
of the application of Convention No. 29 by Myanmar
should be discussed at future sessions of the International
Labour Conference, at a sitting of the
Committee on the Application of Standards specially
set aside for the purpose, so long as this Member
has not been shown to have fulfilled its obligations;
(b) to recommend to the Organization?s constituents as
a whole ­ governments, employers and workers ­
that they: (i) review, in the light of the conclusions
of the Commission of Inquiry, the relations that
they may have with the member State concerned
and take appropriate measures to ensure that the
said Member cannot take advantage of such relations
to perpetuate or extend the system of forced
or compulsory labour referred to by the Commission
of Inquiry, and to contribute as far as possible
to the implementation of its recommendations; and
(ii) report back in due course and at appropriate
intervals to the Governing Body;
(c) as regards international organizations, to invite the
Director-General: (i) to inform the international
organizations referred to in article 12, paragraph 1,
of the Constitution of the Member?s failure to comply;
(ii) to call on the relevant bodies of these organizations
to reconsider, within their terms of reference
and in the light of the conclusions of the
Commission of Inquiry, any cooperation they may
be engaged in with the Member concerned and, if
appropriate, to cease as soon as possible any activity
that could have the effect of directly or indirectly
abetting the practice of forced or compulsory
labour;
(d) regarding the United Nations specifically, to invite
the Director-General to request the Economic and
Social Council (ECOSOC) to place an item on the
agenda of its July 2000 session concerning the failure
of Myanmar to implement the recommendations
contained in the report of the Commission of
Inquiry and seeking the adoption of recommendations
directed by ECOSOC or by the General Assembly,
or by both, to governments and to other
specialized agencies and including requests similar
to those proposed in paragraphs (b) and (c) above;
(e) to invite the Director-General to submit to the Governing
Body, in the appropriate manner and at suitable
intervals, a periodic report on the outcome of
the measures set out in paragraphs (c) and (d)
above, and to inform the international organizations
concerned of any developments in the implementation
by Myanmar of the recommendations of
the Commission of Inquiry.

The Conference is requested to examine, with a
view to their adoption in the form of a resolution, one
or more of the measures indicated in subparagraphs
(a)-(e) of the resolution submitted to it by the Governing
Body.

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

APPENDIX 3

Text of the recommendations of the Commission of Inquiry

539. In view of the Government's flagrant and persistent failure to comply 
with the Convention, the Commission urges the Government to take the 
necessary steps to ensure:

(a) that the relevant legislative texts, in particular the Village Act and 
the Towns Act, be brought into line with the Forced Labour Convention, 1930 
(No. 29) as already requested by the Committee of Experts on the 
Application of Conventions and Recommendations and promised by the 
Government for over 30 years,(1033) and again announced in the Government's 
observations on the complaint.(1034) This should be done without further 
delay and completed at the very latest by 1 May 1999;

(b) that in actual practice, no more forced or compulsory labour be imposed 
by the authorities, in particular the military. This is all the more 
important since the powers to impose compulsory labour appear to be taken 
for granted, without any reference to the Village Act or Towns Act.(1035) 
Thus, besides amending the legislation, concrete action needs to be taken 
immediately for each and every of the many fields of forced labour examined 
in Chapters 12 and 13 above to stop the present practice. This must not be 
done by secret directives, which are against the rule of law and have been 
ineffective, but through public acts of the Executive promulgated and made 
known to all levels of the military and to the whole population. Also, 
action must not be limited to the issue of wage payment; it must ensure 
that nobody is compelled to work against his or her will. Nonetheless, the 
budgeting of adequate means to hire free wage labour for the public 
activities which are today based on forced and unpaid labour is also required;

(c) that the penalties which may be imposed under section 374 of the Penal 
Code for the exaction of forced or compulsory labour(1036) be strictly 
enforced, in conformity with Article 25 of the Convention. This requires 
thorough investigation, prosecution and adequate punishment of those found 
guilty. As pointed out in 1994 by the Governing Body committee set up to 
consider the representation made by the ICFTU under article 24 of the ILO 
Constitution, alleging nonobservance by Myanmar of the Forced Labour 
Convention, 1930 (No. 29),(1037) the penal prosecution of those resorting 
to coercion appeared all the more important since the blurring of the 
borderline between compulsory and voluntary labour, recurrent throughout 
the Government's statements to the committee, was all the more likely to 
occur in actual recruitment by local or military officials. The power to 
impose compulsory labour will not cease to be taken for granted unless 
those used to exercising it are actually brought to face criminal 
responsibility.

540. The recommendations made by the Commission require action to be taken 
by the Government of Myanmar without delay. The task of the Commission of 
Inquiry is completed by the signature of its report, but it is desirable 
that the International Labour Organization should be kept informed of the 
progress made in giving effect to the recommendations of the Commission. 
The Commission therefore recommends that the Government of Myanmar should 
indicate regularly in its reports under article 22 of the Constitution of 
the International Labour Organization concerning the measures taken by it 
to give effect  to the provisions of the Forced Labour Convention, 1930 
(No. 29), the action taken during the period under review to give effect to 
the recommendations contained in the present report. In addition, the 
Government may wish to include in its reports information on the state of 
national law and practice with regard to compulsory military service.


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

Appendix 4

(Appendix 2 of the mission report)

Communication dated 27 May 2000 from the
Government of Myanmar to the Director-General

Excellency,
I wish to express my appreciation to you for responding positively to our 
request to send a technical cooperation mission to Yangon.

I am pleased to inform you that the members of the technical cooperation 
mission and the senior officials from the Ministries of Labour, Home, and 
Foreign Affairs and Attorney-General's Office were able to hold extensive 
discussions on Convention No. 29. I also had useful discussions with the 
members of the technical cooperation mission. Despite their brief stay, 
they also had the opportunity to call on the Minister for Foreign Affairs 
and the Minister for Home Affairs.

Moreover, His Excellency Lt. General Khin Nyunt, Secretary-1 of the State 
Peace and Development Council, took time out of his very busy schedule to 
receive the members of the technical cooperation mission and acquainted 
them in a frank and open manner with the actual situation in the nation. 
These discussions had been very useful and clarified issues where there 
have been differences of perception.

The Government also provided every assistance to facilitate their work and 
allowed them freedom of action. Our only regret is that due to constraints 
of time, they were not able to visit outside Yangon so that they would have 
a better understanding of the situation in the country.

It is our hope that through the discussions and the cooperation the mission 
enjoyed during the sojourn in Myanmar, we have been able to show that 
Myanmar is sincere in its efforts to resolve the issue of the allegations 
of forced labour.

I would also like to take this opportunity to inform you that we have taken 
and are taking the necessary measures to ensure that there are no instances 
of forced labour in Myanmar. Allow me to say that Myanmar would take into 
consideration appropriate measures, including administrative, executive and 
legislative measures, to ensure the prevention of such occurrences in the 
future.

In this regard, the talks held between Myanmar and the ILO technical 
cooperation mission have been most useful in providing a better 
understanding of the issues involved and it is our ardent hope that this 
process of consultation and technical cooperation within the framework of 
the ILO recommendation will continue in working toward the resolution of 
the matter. On my part, I look forward to meeting you during the coming ILC.
Accept, Excellency, the assurances of my highest consideration.

(Signed) Major General Tin Ngwe,

Minister for Labour,
Union of Myanmar.


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

APPENDIX 5

The mission's conclusions

During its talks the mission stressed on several occasions that its role 
was to explain to the authorities of Myanmar what needed to be done to give 
credible effect to the recommendations of the Commission of Inquiry, and 
subsequently to report to the Conference on the measures that the 
Government intended to take this respect. The letter from the Minister of 
Labour to the Director-General constitutes, in a way, the results of the 
mission. Even if by its nature this report can only afford a somewhat 
kaleidoscopic view of the talks, it should help the Conference to place 
this response into perspective.

That said, it may however be useful to add two concluding remarks in the 
light of this report.

Firstly, the mission believes that the Commission of Inquiry's 
recommendations could be satisfied in a coherent and practical way if a 
comprehensive framework of legislative, executive, and administrative 
measures were adopted:
(i)     rendering all practices constituting forced labour in the sense of 
Convention No. 29 illegal under national law, and ensuring that all 
legislative provisions in force that permit the imposition of forced labour 
are repealed or appropriately amended;





(ii)    giving specific instructions to the state authorities, and notably 
to the responsible military authorities, regarding the consequences to be 
drawn from the above as regards the various forms of work mentioned in the 
Commission's report, and monitoring their application, so that in practice 
no forced or compulsory labour is imposed by any authority;

(iii)   informing the entire population adequately and completely about the 
above measures as well as the penalties applicable pursuant to section 374 
of the Penal Code to all those imposing forced labour; and taking concrete 
action to ensure that these penalties are strictly applied in practice.
Secondly, as the Myanmar authorities were told by the mission, the Office 
could certainly help formulate and implement such a framework if the 
Government's commitment to take expeditious action to this effect was made 
sufficiently clear in the eyes of the Conference.

As the report shows, the mission discussed the support that the 
Organization could provide for the effective and sustainable implementation 
of the said framework. It pointed out that the possibility of various forms 
of follow-up action, including an ILO presence on the spot, should be 
considered in the light of the credible plan of action mentioned by the 
Director-General in his letter of 10 May. Obviously, the Government is 
entirely free to request this assistance or not, just as it will be up to 
the competent bodies of the ILO to appraise whether the conditions are met 
for such assistance and presence to be envisaged.