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ILO GOVERNING BODY: REPORT ON BURMA
- Subject: ILO GOVERNING BODY: REPORT ON BURMA
- From: darnott@xxxxxxxxxxx
- Date: Fri, 16 Mar 2001 18:38:00
[This report will be discussed by the ILO Governing Body in the week
beginning 19 March 2001. The likely outcome is that report and the record
of the debate will be transmitted to the International Labour Conference in
June.
The report contains important information and documents, including the
Observations from the Committee of Experts on the Application of
Conventions and Recommendations (CEACR), Appendix 8
-- DA]
Some emphases are lost in the text version below.
The report is available as a 39-page pdf file on
http://www.ilo.org/public/english/standards/relm/gb/docs/gb280/index.htm#GB
************************
GB.280/6
INTERNATIONAL LABOUR OFFICE
Governing Body 280th Session
Geneva, March 2001
SIXTH ITEM ON THE AGENDA
Developments concerning the question
of the observance by the Government of
Myanmar of the Forced Labour
Convention, 1930 (No. 29)
Introduction
1. At its 279th Session (November 2000), the Governing Body had before it
the report of the ILO technical cooperation mission which visited Myanmar
from 20 to 26 October 2000 and subsequent documents provided by the
Government.(1) The Governing Body concluded that the conditions set out in
paragraph 2 of the Conference resolution had not been met and that effect
should accordingly be given to the provisions of paragraph 1 of the
resolution adopted by the International Labour Conference at its 88th
Session (June 2000). The measures mentioned in paragraph 1 of that
resolution therefore came into effect on 30 November 2000.(2) In the light
of the discussion, it was however noted that the Director-General should
continue to extend cooperation to the Government of Myanmar in order to
promote full implementation of the recommendations of the Commission of
Inquiry.(3)
2. In accordance with the Conference resolution, by letter of 8 December
2000, the Director-General brought subparagraph (b) of operative paragraph
1 of the resolution to the attention of governments of member States of the
ILO, and requested that they inform him of any action taken or envisaged in
this regard. The Director-General also requested that the recommendations
contained in the resolution be brought to the attention of the employers'
and workers' organizations in the country so that they might take relevant
measures and inform him either directly or through their government. A copy
of this letter was also sent to the relevant national organizations of
employers and workers.
_____________________________
(1) GB.279/6/1 and the three addenda to that document.
(2) The text of the resolution is reproduced in Appendix 6.
(3) The recommendations of the Commission of Inquiry are reproduced in
Appendix 7.
3. In addition, international employers' and workers' organizations and
other non-governmental organizations having consultative status with the
ILO were also informed of the Governing Body actions.
4. In accordance with the Conference resolution, by letter of 8 December
2000, the Director-General informed the international organizations
referred to in article 12, paragraph 1, of the Constitution of Myanmar's
failure to comply with the recommendations of the Commission of Inquiry and
called 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 might be engaged in with
Myanmar 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.(4) The Director-General also requested these
organizations to inform him of any action taken in this regard by the
competent bodies of the organization. In addition, the Director-General has
been in close touch with Ambassador Razali Ismail, the UN
Secretary-General's special envoy to Myanmar, in connection with his two
recent visits to the country on 9-12 October 2000 and 5-9 January 2001. The
Office has also discussed the matter with the Special Rapporteur on the
situation of human rights in Myanmar, Mr. Paulo Pinheiro.
5. With regard to subparagraph (d) of operative paragraph 1 of the
Conference resolution, the Director-General has after close consultations
with the United Nations secretariat set in motion the procedures necessary
to have the question of Myanmar's failure to implement the recommendations
of the Commission of Inquiry placed on the agenda of the July 2001 session
of the United Nations Economic and Social Council (ECOSOC), 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 contained in subparagraphs (b) and (c) of
paragraph 1 of the Conference resolution.
6. In addition to the information communicated pursuant to the Conference
resolution, a substantial amount of information was also received from
other sources. This was in large part due to the wide publicity attracted
by the coming into effect of the measures contained in the Conference
resolution. A number of NGOs and individuals volunteered information to the
Office regarding measures taken and other action initiated in support of
the Conference resolution, as well as information regarding the current
practice of forced labour in Myanmar.
7. Information received on measures taken in regard to the Conference
resolution will be set out in four parts: (i) developments as regards the
Government of Myanmar; (ii) measures taken by the Organization's
constituents; (iii) measures taken by international organizations; (iv)
other relevant information received.
__________________________
(4) Letters were sent to the following 59 organizations: United Nations,
UNHCR, UNICEF, UNDP, UNFPA, OHCHR, UNCTAD, WFP, UNEP, UNODCCP, UNRWA,
UNAIDS, Economic Commission for Africa, ECE, Economic and Social Commission
for Asia and the Pacific, Economic Commission for Latin America and the
Caribbean, Economic and Social Commission for Western Asia, FAO, WHO,
UNESCO, UNIDO, IAEA, WIPO, ICAO, UPU, IMO, WMO, ITU, IFAD, PAHO, IMF, World
Bank, WTO, OECD, European Commission, Council of Europe, African
Development Bank, Asian Development Bank, Inter-American Development Bank,
European Bank for Reconstruction and Development, Caribbean Development
Bank, League of Arab States, Organization of African Unity, CARICOM,
Organization of American States, ASEAN, SAARC, Andean Community, SELA,
LAIA, Nordic Council, OIC, CERN, ECOWAS, Arab Labour Organization, World
Tourism Organization, IOM, Asian Productivity Organization and the
Inter-Parliamentary Union.
Developments as regards the
Government of Myanmar
8. Due to early closure of the Governing Body's 279th Session, a letter
from the Permanent Mission of Myanmar to the Chairperson of the Governing
Body stating its position following the Governing Body's conclusions
reached his office too late to be brought to the attention of the Governing
Body. This statement is reproduced in Appendix 1 for information.
9. In a letter dated 6 December 2000 to the Chairman of the 279th Session
of the Governing Body, the Permanent Representative of the Myanmar Mission
reiterated the concerns raised in the letter referred to in the preceding
paragraph. The letter also contained an annex entitled "Resumé of the
concrete measures taken by the Myanmar Government", which included
information on the Government's position prior to the Governing Body's
conclusions. This document is reproduced in Appendix 2 for information.
10. In a letter dated 22 December 2000 to the Government of Myanmar,
reproduced in Appendix 3, the Director-General informed the Government that
he had notified ILO Members and international organizations of the decision
of the Governing Body, as contemplated in the relevant paragraph of the
resolution, but stressed that he continued to extend cooperation to the
Government in order to promote the full implementation of the
recommendations of the Commission of Inquiry. He expressed the sincere hope
that the measures currently in force would soon become unnecessary as a
result of the Government's full application of these recommendations.
11. In reply to the Director-General's letter of 22 December 2000, the
Government sent a letter dated 11 February 2000, reproduced in Appendix 4,
in which it recalled that it had received two technical cooperation
missions from the ILO in its efforts to make its domestic legislation fully
in line with Convention No. 29. It had put into place a framework of
legislative, executive and administrative measures to make forced labour
illegal both in law and in practice. However, "... powerful forces in the
ILO Governing Body totally ignored the concrete measures taken by Myanmar
as well as its demonstrated desire to cooperate with ILO". The letter
further stated that despite this, Myanmar was resolute in its endeavours to
implement the framework of measures that it had put in place. The Committee
for Implementation of Convention No. 29 was holding regular meetings to
review the situation. The national monitoring mechanism which had been put
in place was also functioning smoothly. There had been a few cases where
the latest legislative order had been breached. These cases had been
investigated and necessary legal action was taken against the perpetrators.
The Government thanked the Director-General for his readiness to extend
cooperation to Myanmar, and fully realized that its national efforts would
receive better acceptance by its detractors if they involved the ILO.
However, until such time that Myanmar received fair and equitable
treatment, it would have to itself continue its efforts for the total
elimination of the practice of forced labour in Myanmar. The Government
gave its assurances that it would continue to take steps to ensure that
forced labour was illegal in Myanmar and that the framework of measures put
in place would be resolutely implemented.
12. The Director-General responded to this reply by letter dated 1 March
2001, reproduced in Appendix 5 The Director-General will inform the
Governing Body of any future developments.
Measures taken by the Organization's
constituents
Measures taken by member States
13. By 5 March 2001, responses had been received from 39 member States, as
well as a number of national employers' and workers' organizations. A
summary of these responses follows. Given the ongoing nature of some of the
reported measures, the present report will be completed, as appropriate,
with any further relevant information for the International Labour
Conference as indicated in paragraph 67 below. As a result of member States
forwarding information pursuant to the Conference resolution to national
employers' and workers' organizations, a considerable amount of information
was received separately from these organizations about actions they had
taken in relation to the resolution.
14. In a letter dated 19 January 2001, the Government of the United States
indicated that it had worked continuously and with bipartisan support to
seek a return to democracy and improvements in human rights, including an
end to forced labour, in Myanmar. In this regard, the Government had
imposed a series of diplomatic and economic sanctions against Myanmar in
recent years, including suspension of economic assistance, downgrading
diplomatic representation to chargé level, an arms embargo, suspension of
trade benefits under its GSP programme, opposition to support programmes
from international financial institutions, restriction on visas for Myanmar
individuals involved in the suppression of democracy and human rights, and
a ban on US investment in Myanmar. The Government had also supported a
number of actions taken by the ILO with regard to forced labour in Myanmar,
including the November 2000 finding by the Governing Body that insufficient
progress had been made to withhold the measures adopted by the Conference.
At the same time, the Government noted that the Myanmar authorities and Daw
Aung San Suu Kyi of the National League for Democracy had confirmed that
they were engaged in dialogue. The Government hoped that this was a genuine
effort to achieve national reconciliation, and that it brought concrete and
timely progress towards ending forced labour and other human rights abuses
in Myanmar. The Government hoped this process succeeded, but
believed that in the absence of significant and measurable progress, ILO
Members, including the United States, should be prepared to consider
additional measures, including trade sanctions, in response to the article
33 decision of the Conference. The Government stressed that there was no
evidence yet before the Governing Body or the Conference that suggested the
recommendations of the Commission of Inquiry had been fully implemented.
Finally, the Government expressed continued misgivings regarding an ILO
presence in Myanmar.
15. In a letter dated 15 February 2001, the Government of Thailand stated
that in order to take measures in compliance with the Conference
resolution, on 10 January 2001 the Ministry of Labour and Social Welfare
had held a meeting of relevant government agencies, workers' and employers'
organizations and others, and that the Government could therefore give
assurances that no Thai investment in Myanmar contributed, directly or
indirectly, to the exaction of any form of forced labour. Every possible
effort would be made to discourage the practice of forced labour, should
the Government become aware of its existence in any form. In order to
resolve this issue effectively and strengthen cooperation with the ILO,
agreement had been reached to set up a steering committee in order to
monitor and follow up the case.
16. The Governments of Denmark, Finland, France, Germany, Ireland, Italy,
Netherlands, Sweden and United Kingdom indicated that the matter of how
best to give effect to the recommendations contained in the Conference
resolution had been discussed with employers' and workers' organizations,
among EU Member States and with the European Commission. They shared the
international concern at the practice of forced labour in Myanmar, a
practice which they feared had not yet ended. The European Community
suspended GSP trade privileges in 1997 as a result of this practice. The
European Union had also taken a number of other measures over the last four
years, set out in its Common Position, in response to the political
situation in Myanmar. The Myanmar regime had taken certain steps aimed at
ending the practice of forced labour, but it needed to be outlawed legally,
ended in practice, and any continuing practitioners punished. The European
Union was monitoring the situation closely and, should the authorities in
Myanmar fail to take the necessary action in this respect, the European
Union stood ready to take further measures. The European Union made clear
its concerns regarding forced labour during the visit of its Troika mission
to Myanmar in January 2001. It sincerely hoped that contacts would be
renewed between the ILO and Myanmar and that an ILO presence might be
established in the country in order to verify the definitive end to the
practice of forced labour. The Government of Ireland added that it intended
to write to any companies with trade or investment links with Myanmar to
express its support for the ILO resolution. The Government of Denmark added
that its Standing Committee for ILO matters had recommended that Danish
enterprises consider their relations with Myanmar. The Government of France
added that it had undertaken an exhaustive assessment of its cooperation
with and assistance to Myanmar, currently limited to the humanitarian
field, in order to ensure that these relations could not in any way
perpetuate or extend the practice of forced labour in the country. A census
of French companies working in Myanmar was also underway, in order to
inform them of the ILO resolution. The Government of Italy added that it
had instituted an in-depth review of bilateral relations with Myanmar to
ensure that they could not be taken advantage of to perpetuate the system
of forced labour in that country. Italian commercial relations with Myanmar
had been reduced to a minimum following the deterioration in the political
and human rights situation. Between January and October 2000, the most
recent period for which figures were available, the total trade with
Myanmar had been 32 million euros, and there was no Italian investment in
Myanmar, nor was any currently planned. The number of Italian tourists
visiting Myanmar between 1999 and 2000 was minor. The Government of the
Netherlands added that its policy was neither to encourage Dutch companies
to enter into activities in Myanmar nor to discourage them. Total trade
amounted to around US$19 million annually. The Government of Sweden added
that its relations with Myanmar were of limited extent. Its economic
relations were negligible, with imports for the period January-October 2000
standing at around SEK20 million (mostly wooden and textile products) and
exports for the same period standing at SEK1.2 million. It was ready to
take measures to ensure that the country's trade with Myanmar did not
support the system of forced labour. As one measure, it would officially
inform Swedish importers of the Conference resolution and the
recommendations of the Commission of Inquiry.
17. In a communication dated 28 February 2001, the Government of
Switzerland stated that due to lack of progress in democratization in
Myanmar and due to systematic violation of human rights (including workers'
rights), it had passed a law on 2 October 2000 instituting measures against
Myanmar. This law, a copy of which was provided, imposed an arms embargo
and prohibited the export to Myanmar of equipment that could be used for
the purposes of internal repression. In addition, members of the Government
of Myanmar and their families were subject to a freeze of their assets in
Switzerland and were prohibited from entry into or transit through
Switzerland. Consultations had established that relations between
Switzerland and Myanmar were minor, with imports over the period January to
November 2000 standing at Sw.frs.2.2 million and exports at Sw.frs.3.5
million. The number of Swiss tourists visiting Myanmar was also minor. In
addition, the Government pointed out that the international "Clean Clothes"
campaign had particularly targeted an underwear company based in
Switzerland. The Swiss tripartite consultation commission, while welcoming
recent legal measures taken by the Government of Myanmar, hoped that these
would be translated into action. It further hoped that Myanmar would accept
a permanent ILO presence, which would be able to verify the implementation
of the recommendations of the Commission of Inquiry, and in this way that a
normalization of relations between Myanmar and the international community
might be facilitated. Taking into account the fact that existing bilateral
economic relations were minor, and given the initial steps taken by the
Government of Myanmar towards a political opening, it was not envisaged for
the moment that the Government would take additional measures against Myanmar.
18. In a communication dated 26 January 2001, the Government of Norway
confirmed its continued support for the EU's Common Position on Myanmar. It
did not provide humanitarian assistance to organizations or activities that
contributed in any way to forced labour in Myanmar. Half of the Norwegian
assistance related to Myanmar was applied to human rights and democracy
measures. In 1998 the Government issued a call, which remained in effect,
to Norwegian firms not to trade with Myanmar. Current trade with Myanmar
was marginal. In December 2000 the Government had met with the Norwegian
Federation of Trade Unions to discuss the question of a possible boycott.
19. In a communication dated 1 March 2001, the Government of Australia
stated that it had conducted a review of relations with Myanmar, which had
established that no Australian government-funded aid programmes or
activities supported or perpetuated the practice of forced labour. The
Government was unaware of any Australian firms engaging in activities in
Myanmar which were linked with forced labour, but its embassy in the
country had advised Australian companies known to be working or investing
there of its review and recommended that they ensure their compliance with
the Conference resolution. In addition, the Australian Government had taken
constructive steps in other areas to encourage the Myanmar authorities to
eliminate forced labour. It had funded a series of human rights training
workshops in Yangon in 2000 for some 50 middle-level officials, one of
which was an "international law overview" during which participants openly
discussed sensitive issues including the issue of forced labour.
20. The Governments of Austria, Croatia, Ecuador, Nicaragua, Saudi Arabia,
Trinidad and Tobago and Ukraine stated that they had communicated the
details of the Conference resolution to their employers' and workers'
organizations, but did not have any further information to provide at this
stage.
21. The Governments of Chile, Cuba, Czech Republic, Iceland, Islamic
Republic of Iran, Jordan, Kenya, Lithuania, Malaysia, Mali, Morocco,
Panama, Philippines, Romania, Singapore, Suriname and Togo stated that they
had no relations with Myanmar that could be taken advantage of to
perpetuate or extend the practice of forced or compulsory labour referred
to by the Commission of Inquiry. The Government of Singapore also
reiterated that the adoption of promotional measures rather than sanctions
would be more appropriate and effective in addressing the issue of forced
labour in Myanmar. The Government of the Czech Republic also stated that it
had joined the EU Common Position on Myanmar, adopted in 1996 and
subsequently extended. It had also joined the EU embargo on weapons,
ammunition and military equipment export to Myanmar, had cancelled aid
which was not of a clear humanitarian character as well as development aid
programmes. Bilateral relations were also suspended, including those of
social partners. The
Government of Malaysia also stated that it would continue, along with other
ASEAN
members, to urge the Myanmar authorities to implement measures that would
bring an end
to all practices described as forced labour by the Commission of Inquiry.
It looked forward
to an amicable solution which would address the issue effectively.
Measures taken by national employers'
and workers' organizations
22. The Confederation of Free Trade Unions of the Slovak Republic noted
that the Slovak
Republic followed the EU position on Myanmar. The Slovak Republic did not
maintain
any bilateral political relations with Myanmar, but did maintain trade
contacts within the
EU restrictions. There was not thought to be any investment in Myanmar by
Slovak
enterprises, but a review of the type of commodities imported from Myanmar
to the Slovak
Republic showed that the majority belonged to sectors which were subject to
violation of
fundamental labour rights. Attached to the letter was a list of Slovak
enterprises exporting
to and importing from Myanmar as well as a breakdown of this trade by
sector and
whether it was likely to involve forced labour.
23. In a communication dated 20 February 2001, the Confédération Générale
du Travail Force
Ouvrière indicated that it had requested the French Government to provide
it with a list of
French companies having relations with Myanmar as well as details and
amount of business dealings with that country. In addition, the
organization had written to a certain French company involved in hotels and
tourism to request them to reconsider their activities in Myanmar. The
Confederation was not satisfied with the company's response that its
presence would have positive effects. Moreover, the Confederation had
repeatedly pressed the French Government to become involved in the question
of the presence in Myanmar of a certain French multinational company. The
Confederation had also requested that a special session of the consultation
commission for ILO matters be held, dedicated exclusively to the question
of Myanmar.
24. Communications from Norwegian employers' and workers' organizations
were forwarded
by the Government of Norway. The Norwegian Confederation of Trade Unions
stated that
together with other Norwegian voluntary organizations it had played an
active part in
trying to bring about a statutory Norwegian economic boycott of Myanmar.
The Confederation of Vocational Unions indicated that it strongly urged the
Government to implement such a boycott. The Confederation of Norwegian
Business and Industry welcomed the Government's requests for abstention
from economic cooperation with Myanmar and would encourage member
enterprises to comply with this request. In a separate communication, the
Norwegian Confederation of Trade Unions provided translations of
correspondence between itself and the Government of Norway regarding the
Confederation's call for a Norwegian economic boycott of Myanmar.
25. The Swedish Trade Union Confederation indicated that it had requested
the Swedish
Government to take additional measures against Myanmar, including a ban on
investments
and on the import of products from Myanmar. Its affiliated national unions
would
undertake a review to ensure that no Swedish companies or authorities were
economically
active in Myanmar, including imports, exports, investment and trade. The
organization also
requested that Sweden, as holder of the EU presidency, should seek a
decision by the EU
Council of Ministers banning investments by all companies based in the
European Union
and banning imports of all products originating in Myanmar.
26. Information from German workers' organizations was forwarded by the
Government of
Germany. A report on the elimination of forced labour in Myanmar by the German
Confederation of Trade Unions discussed the background to the case and
noted that most
forms of economic relations with Myanmar made at least some use of
infrastructure built
with forced labour. All German companies were advised to take a critical
look at their
economic ties to business partners in Myanmar. The works councils of
enterprises that had
economic relations with Myanmar should request management for detailed
information
about the nature of these ties, and urge management to cut any ties which
could not be
maintained without making use of infrastructure constructed using forced
labour. Such
requests were covered by paragraph 80 of the Works Constitution Act, since
such an
enterprise would be party to what the international community considered a
grave violation
of the law. A letter to the Government of Germany from the German Union of
Salaried
Employees supported any action the Government could take regarding the
situation in
Myanmar, including representations to the Government of Myanmar via its
embassy.
27. The Union Syndicale Suisse provided information on the extent of trade
relations between
Myanmar and Switzerland, set out the details of the law passed by the
Government of
Switzerland against Myanmar on 2 October 2000, and noted that the
Swiss-based textile
company had been targeted by the "Clean Clothes" campaign. Similar
information was
provided by the Government of Switzerland and is set out in more detail in
paragraph 17
above.
28. Information from the Confederation of British Industry (CBI) was
forwarded by the
Government of the United Kingdom. In a letter dated 8 February 2001 to the
Government
of the United Kingdom, the Confederation indicated that its member
companies had had
the Government's policy towards Myanmar brought to their attention. The CBI
was one of
the strongest proponents of tough action against Myanmar and would continue
to support
the ILO action.
29. The Government of Finland forwarded information from the Confederation
of Finnish
Industry and Employers. The Confederation indicated that it did not have
any relations
with Myanmar or business organizations there. It supported the EU position
and informed
its membership (constituting 85 per cent of Finnish industry) on a regular
basis about the
ILO's recommendations. Finnish enterprises did not operate in Myanmar nor
have industrial investments or networks there. Trade between Finland and
Myanmar was minor, with exports over the period January-November 2000
standing at 248,000 euros and imports over the same period standing at 2
million euros (mostly clothing).
30. The Barbados Workers' Union and the National Confederation of Free
Trade Unions of
Romania indicated that they had no relations with Myanmar that could be
taken advantage
of to perpetuate or extend the practice of forced or compulsory labour
referred to by the
Commission of Inquiry.
31. The International Organisation of Employers informed all its member
federations of the
November Governing Body debate and highlighted the employers' position,
clarified the
meaning of the resolution and accompanying measures and informed them that
one of the
measures would be to ask constituents to review their relations with
Myanmar. Employers
have been involved in discussions with governments at national level on the
country
response to the resolution.
Measures taken by international organizations
32. By 5 March 2001, responses had been received from 20 international
organizations. These
came from the secretariats of these organizations, and no information was
provided at this
stage about any discussions in the relevant bodies of these organizations
regarding the
reconsidering of any cooperation they may be engaged in with the member
concerned.
33. The United Nations Secretary-General indicated that the matter had been
brought to the
attention of all offices concerned in the United Nations. The United
Nations and its
programmes and funds could not be involved in any activities that might
have the effect of
directly or indirectly abetting the practice of forced or compulsory labour
as this would be
contrary to Article 1 of the United Nations Charter.
34. The European Commission stated that it strongly supported the
significant position the
ILO had taken on Myanmar, and had consequently engaged in discussions with the
European Union Member States on the implementation of the terms of the
Conference
resolution. Action had already been taken in 1997 following an
investigation into
allegations by European trade union organizations of forced labour in
Myanmar. As a
result, Myanmar's access to the European Union's Generalised System of
Preferences had
been removed. The European Union had also taken a number of other measures
over the
last four years which were set out in its Common Position, first adopted in
1996 and
strengthened on a number of occasions since. The Commission considered that the
authorities of Myanmar needed to take rapid steps to ensure full compliance
with ILO
recommendations on the elimination of forced labour. The Commission, in
common with
the Member States of the European Union, was monitoring the situation
closely and,
should the authorities fail to take the necessary steps, the Commission
would be ready to
propose further measures to be decided by the Council, including possible
measures in the
field of trade and investment relations.
35. The Office of the United Nations High Commissioner for Refugees (UNHCR)
indicated
that it had made an assessment of its activities in Myanmar and concluded
that there were
no activities which might be considered as directly or indirectly abetting
the practice of
forced labour. Attached to the communication was a "note on UNHCR's
activities in
Myanmar and compulsory labour", which described the nature of UNHCR's
operations in
Myanmar in relation to each of its six areas of intervention and discussed
any impact this
assistance might have on the practice of forced labour. This note is
reproduced in Appendix 9.
36. The United Nations Development Programme (UNDP) indicated that its
country office in
Myanmar had recently carried out a thorough review of its project
activities in Myanmar in
the context of the Conference resolution and had confirmed that there were no
UNDP-funded activities which directly or indirectly supported the practice
of forced or
compulsory labour. The UNDP would continue to monitor this situation very
closely
during the implementation of its project activities. Attached to the
communication was a
"note on UNDP's activities in Myanmar in the context of the ILO
resolution", which gave
details of UNDP's assistance to Myanmar and discussed any impact this
assistance might
have on the practice of forced labour. This note is reproduced in Appendix 10.
37. The United Nations Children's Fund (UNICEF) indicated that it had
evaluated the impact
that its activities might have on forced labour and concluded that by
design and practice its
programme in Myanmar neither directly nor indirectly abetted the practice
of forced
labour. A new country programme had just taken effect and during
development great care
had been taken to avoid association with parties involved in the practice
of forced labour.
Community participation in its projects was strictly on a volunteer basis,
and at all levels,
all possible precautions were taken to prevent support of forced labour in
the organization's operations.
38. UNAIDS indicated that with respect to its activities in Myanmar its
co-sponsors had
established close working relationships with the Ministry of Health as well
as international,
national and local non-government organizations. It had reviewed the
modalities of its
work in light of operative paragraph 1 of the Conference resolution and had
no reason to
believe that the Ministry of Health had violated this provision. It also
noted that all UN
agencies operating in Myanmar had their programmes examined by their
respective Boards
to ensure adherence to international conventions. Its partnerships with
international NGOs
had been consistently guided by protocols widely recognized in the
humanitarian field. In
addition, those organizations were signatories to a code of conduct that
ensured a high
level of ethical programming and operations.
39. The United Nations Population Fund (UNFPA) indicated that although
Myanmar was one
of the priority countries under its resource allocation programme, it had
not yet supported a
full-scale country programme due largely to the prevailing political
situation. It allocated
less than $1 million annually for reproductive health activities. No
UNPFA-funded
activities benefited from or contributed to any form of forced labour, be
it directly or
indirectly.
40. The World Food Programme (WFP) stated that it operated exclusively in
the Northern
Rakhine State of Myanmar, which was a food deficit area. It had been
working in the area,
in coordination with UNHCR, since 1994 in such activities as relief, food
for education,
and food for community asset creation (FCAC). Workers received a daily food
ration of
3.5 kg of rice for a family of five. FCAC activities were community based
and voluntary,
and mainly involved the building of irrigation dams, village access roads
and the
upgrading of township roads.
41. The International Civil Aviation Organization (ICAO) stated that it
conducted technical
cooperation activities in Myanmar which were for the safety and efficiency
of civil aviation in the country and to facilitate safe movement of
international civil aviation overflying the airspace of Myanmar. Its
ongoing technical cooperation activities in this regard were related to the
procurement of essential communication and navigation equipment and for the
enhancement of capabilities with respect to the overseeing of flight
safety. Technical assistance had also been offered to the Department of
Civil Aviation of Myanmar to upgrade the capability of the Civil Aviation
Training Centre and for the expansion of Hanthawadi International Airport
at Yangon. The ICAO stressed that its technical cooperation activities in
Myanmar did not, to its knowledge, directly or indirectly abet the practice
of forced or compulsory labour.
42. The International Maritime Organization (IMO) indicated that Myanmar
had been chosen
to participate in four regional projects for Asia, which were still
ongoing. These projects
promoted ship inspections by port States, safety of non-convention ships,
training for maritime instructors and examiners and port State control
officers. In addition, some IMO courses and publications had been provided
to Myanmar in 2000, following a needs assessment of the maritime training
institutes in the country. Accordingly, the IMO's technical assistance in
improving the competency and skills of maritime personnel did not have the
effect of directly or indirectly abetting the practice of forced or
compulsory labour in Myanmar.
43. The World Trade Organization (WTO) indicated that the matter would be
followed up in
the WTO with the Chairperson of the General Council. WTO rules did not
afford the
secretariat authority to adopt an independent line of action in matters
such as these. WTO
members had to decide on any course of action.
44. The Universal Postal Union (UPU) stated that it had looked into the
matter and was not
aware of any practice of forced or compulsory labour in the postal sector
in Myanmar. If
there were at all any such practice then it would most likely exist in
remote rural areas.
Myanmar was not a member of the UPU's elective bodies and the UPU had a
rather limited cooperation with Myanmar at the official ministerial level.
It was aware, however,
that postal services were still under the direct supervision of the Myanmar
Government,
which meant that fundamental human rights were more likely to be fully
observed in this
sector. It therefore felt that there were no legal or other reasons for
ceasing any official
postal relations with Myanmar.
45. The Inter-Parliamentary Union (IPU) stated that since Myanmar did not
have a
parliament, no contacts were maintained with the authorities in the
country. The only
dealings with Myanmar were in the context of the IPU's Committee on the
Human Rights
of Parliamentarians which since 1991 had examined the cases of members of
the Myanmar
Parliament who were selected in 1990 and were to date prevented from
exercising the mandate that was entrusted to them, in particular the cases
of those who were in detention and could therefore be subject to forced
labour. The IPU provided the text of its most recent resolution on Myanmar,
adopted in October 2000, which "called again on its member parliaments to
press for the respect of democratic principles in Myanmar and to show their
solidarity with their elected colleagues from the Pyithu Hluttaw [Myanmar
Parliament] by whatever means they deemed appropriate ...".
46. The African Development Bank Group, the International Telecommunication
Union, the
Nordic Council, the Organisation for Economic Co-operation and Development
(OECD), the Pan American Health Organization, and the Arab Labour
Organization stated that they had no relations with Myanmar that could be
taken advantage of to perpetuate or extend the practice of forced or
compulsory labour referred to by the Commission of Inquiry. The Asian
Development Bank stated that it presently had no active operations in
Myanmar and that the latest loan dated back to 1987 and the latest
technical assistance to 1988.
Other relevant information received
Correspondence between the Government
of Myanmar and the United Nations
47. The Office received from the United Nations copies of correspondence
between the Government of Myanmar and the United Nations Secretary-General.
In a communication dated 8 January 2001 the Government of Myanmar informed
the Secretary-General of certain action that it had taken to implement the
recommendations of the Commission of Inquiry and stated that the decision
of the Governing Body was "a grave injustice". The Government also
considered that the measures contained in the Conference resolution calling
on other international organizations to "impose sanctions" against Myanmar
"clearly overstepp[ed] the constitutional mandate of the ILO". The
Government called on the Secretary-General in his role as the Chief
Executive of the entire UN system to use his good offices to prevent these
measures being taken. The Government was greatly concerned that the outcome
from such extreme measures would set a dangerous precedent
for the entire UN system. The Secretary-General responded in a letter dated
24 January 2001, noting that the Conference resolution was a decision of an
inter-governmental body and that the ILO Director-General was mandated to
implement it. The Secretary-General also suggested that the Government
might wish to consider writing to the ILO Director-General expressing its
readiness to receive a mission to assess and verify the progress made on
the forced labour issue before the next meeting of the Governing Body.
Communications from groups in Myanmar
regarding the Governing Body conclusions
48. An "open letter regarding ILO decision on Myanmar" dated 29 November
2000 from "Workers of Myanmar" was received by the Director-General. The
letter stated that it was from 18 million workers employed by public and
private enterprises. The workers believed that the Governing Body's
conclusions would have a direct and immediate negative impact on the
workforce. The Government of Myanmar had passed strong penal laws to
prohibit forced labour and the workers believed that the ILO had already
succeeded in bringing better working conditions for the workers in Myanmar.
The workers therefore petitioned the ILO to reconsider its actions and
maintain a constructive partnership with Myanmar.
49. An open letter of the same title and same date was also received from
the "International
Business Community in Myanmar". The letter stated that the International
Business Community was deeply disappointed by the Governing Body's
conclusions. The wide range of businesses it represented employed a total
of over half a million workers in Myanmar, and indirectly provided
employment to many more. It suggested that the "sanctions" would only hurt
the majority of Myanmar workers, rather than helping them. The ILO had
secured the issuance by the Myanmar authorities of a number of orders
making forced labour illegal and the ILO should remain constructively
engaged with Myanmar to review compliance with these orders. It urged the
ILO member States and workers' and employers' organizations to carefully
reconsider their position, as it was concerned for the real welfare of
workers in Myanmar. It also urged the Government of
Myanmar to maintain a positive dialogue with the ILO.
Information on action taken in support of the
Conference resolution
50. The Office received copies of letters from a number of national
workers' organizations to
their governments regarding the Conference resolution.
51. The National Automobile, Aerospace, Transportation and General Workers'
Union of Canada (CAW) called on the Canadian Government to act upon the
Conference resolution without delay, beginning with an immediate halt to
the activities of all Canadian commercial and economic interests in
Myanmar, including a ban on imports from that country, pending a
comprehensive review. Such a review had to prove unequivocally that these
activities did not benefit in any way, or encourage in any form, the
practice of forced labour. The Confédération des syndicats nationaux
requested information from the Canadian Government regarding the mechanisms
set up by the Government to ensure that Myanmar implemented the
recommendations of the Commission of Inquiry, and insisted that Canada took
all means at its disposal to ensure the implementation of these
recommendations. The Canadian Labour Congress communicated to the Canadian
Government the text of a statement on Myanmar to be adopted by its
Executive Committee and Council. The Congress would continue to monitor
Canadian investment directly or indirectly connected to forced labour in
Myanmar. The Congress was encouraging its members to boycott products
imported from Myanmar. The Canadian Government should now take a number of
concrete steps regarding Myanmar, including researching, monitoring and
reporting on investments and imports, reviewing the Special Economic
Measures Act to allow for concrete and specific measures to be taken, and
convening a meeting, with the participation of the Congress, of the
Government's Working Group on Corporate Social Responsibility to jointly
develop steps to address the issue.
52. The Centrale des Syndicats des Travailleurs du Rwanda and the
Bangladesh Jatio Sramik
League urged their respective governments to take action with regard to the
Conference
resolution.
53. The Lanka Jathika Estate Workers' Union recommended that the Sri Lankan
Government take up the matter of the Conference resolution with the
Government of Myanmar and urge it to implement the recommendations of the
Commission of Inquiry, suggested that the leading government trade union,
possibly with the assistance of the Labour Ministry, coordinate a joint
representation of all unions to the Government of Myanmar, and noted that a
similar protest and appeal by the Employers' Federation would be appropriate.
54. The Office also received information from two international workers'
organizations
regarding action taken in support of the Conference resolution.
55. In a communication dated 26 January 2001, Union Network International
(UNI) transmitted the report of a joint mission to the Thai-Myanmar border
that it had conducted with the ICFTU in January 2001. The mission had
visited two sites on the border and met with numerous refugees and trade
union activists operating in Mon State and Karen State. The persons met
noted that the Conference resolution and resulting international pressure
had been effective to a certain extent, but there was continuing use of
forced labour or payments of money having to be made in lieu of force
labour. There were numerous killings and destruction of paddy fields and
villages causing thousands to be displaced, particularly in Karen State.
The majority of those displaced were starving and suffering from disease.
All persons that the mission met, including hundreds of refugees, supported
the imposition of more comprehensive sanctions on Myanmar by the
international community. While they accepted that ordinary people would
suffer as a consequence of sanctions, they were of the strong opinion that
it was necessary to force the Myanmar
authorities to restore democracy and end the use of forced labour. The
mission recommended that trade unions should continue to provide moral and
financial support to the Federation of Trade Unions of Burma (FTUB), that
UNI should work closely with all its affiliates in the finance sector to
develop a coordinated strategy to discourage any investments or provision
of financial services to business related to Myanmar, that UNI might
consider working closely with its affiliates in other strategic sectors to
put further economic pressure on the Myanmar authorities, that UNI would
provide training and assistance to the FTUB and other unions, as well as
humanitarian assistance for displaced civilians and refugees, and that the
ICFTU/Global Unions Conference on Myanmar to be held in Tokyo from 28
February to 1 March 2001 would be a timely opportunity to express
commitment to the struggle for the restoration of democracy and respect for
human rights and trade union rights in Myanmar.
56. A communication dated 16 February 2001 from the ICFTU provided abundant
information regarding the current practice of forced labour in Myanmar
(dealt with in the following
section of this document), as well as information on action taken by the
ICFTU in support
of the Conference resolution. As regards action taken, the ICFTU indicated
that it had
sought to review relations maintained with Myanmar by its constituents to
determine which of these relations might have the effect of aiding Myanmar
to perpetuate the system of forced labour. However, to the best of its
knowledge neither the ICFTU, the international trade secretariats, their
regional organizations, nor any of their affiliates maintained any relation
with the Myanmar regime. Any relationship which they may have with Myanmar
was limited exclusively to the promotion of workers' fundamental and other
human rights. In January 2001, the ICFTU issued a circular to all its 221
affiliated national union centres in 148 countries, its regional
organizations, all its executive board members and to the international
trade secretariats, requesting them to take a number of steps with respect
to the Conference resolution. These steps included requesting their
respective governments and national employers' organizations to provide a
complete list of enterprises based in their respective countries
maintaining trade relations with Myanmar, and requesting their respective
governments to provide comprehensive information about the total value of
that country's trade with Myanmar, taking into account a list of products,
provided by the ICFTU, production of which might involve forced labour. A
briefing paper appended to the circular discussed far-reaching measures,
including trade and investment bans, on the grounds that economic
engagement with Myanmar supported the military regime.
57. The ICFTU communication also provided information on other steps taken
by it and its
affiliates. Prior to the departure of the recent EU delegation to Myanmar,
the ICFTU had
briefed one of the members of the delegation on its views. An ICFTU
affiliate, LO-Sweden, had also briefed its own Government which, as holder
of the rotating EU Presidency, led the delegation. In February 2001 the
ICFTU had given its views to separate meetings of European NGOs and the
Development Committee of the European Parliament. A number of ICFTU
affiliates had reported taking various steps in support of the Conference
resolution, including pressing their respective governments to strengthen
their position against Myanmar (such as by the adoption of trade and
investment bans), and calling for consumer boycotts of brands produced in
Myanmar or made by companies having economic relations with Myanmar. A
number of other initiatives were also taken at the regional or subregional
level.
58. The ICFTU also noted in its communication that several EU governments
remained reluctant to contemplate a strengthening of the EU Common Position
when it is reviewed in April 2001, and that several governments seemed to
be hoping for a notable improvement in the situation as a result of the
"secret dialogue" between the Government of Myanmar and Daw Aung San Suu
Kyi. These governments seemed to ignore the fact that similar talks in the
past had yielded no result and that opposition members, who should never
have been arrested in the first place, were often released shortly prior to
important diplomatic visits. Some analysts believed that the ILO measures
had played an important role in bringing about a dialogue between the
Government and the National League for Democracy, and thus any hesitation
in implementing the measures at this time might well jeopardize the talks.
59. The ICFTU noted that a comprehensive union strategy on Myanmar would be
discussed at
a conference to be held in Tokyo at the end of February. The Office was
represented at this
conference, which brought together trade unionists and international trade
secretariats from
across the Asia-Pacific regions, as well as from Europe and the United
States. The Federation of Trade Unions of Burma (FTUB) was also
represented. The conference adopted a Declaration, as well as a Plan of
Action which is reproduced in Appendix 11.
Information regarding the current practice
of forced labour in Myanmar
60. A considerable amount of information was also received from a number of
international
workers' organizations and other non-governmental organizations regarding
the current
practice of forced labour in Myanmar. The information concerning actual
practice since
November 2000 is briefly summarized below.(5)
_____________________________
(5) Information on the practice of forced labour up to November 2000 is
contained in the 2001 report of the CEACR. The individual observation
concerning the observance of Convention No. 29 by Myanmar is reproduced in
Appendix 8.
61. In its communication dated 26 January 2001, Union Network International
indicated that,
according to persons met by its joint mission, the Conference resolution
and resulting international pressure had been effective to a certain
extent, for example in helping to bring
about the dialogue between the Myanmar authorities and Daw Aung San Suu
Kyi. There was, however, continuing use of forced labour or payments of
money having to be made in lieu of forced labour.
62. In its communication dated 16 February 2001, the ICFTU provided
extensive information
regarding the current practice of forced labour in Myanmar. The ICFTU noted
that the military junta had not taken any action aimed at genuinely
curbing, let alone eliminating, forced labour. Rather, military and
administration officials at every level had taken action aimed at hiding
the extent and nature of forced labour imposed on the civilian population,
at weakening or nullifying the effects of any orders preventing forced
labour that might have been issued by superior levels, and at preventing
and countering, through propaganda, disinformation and deception, the
measures foreseen by the Conference resolution. This action included a
massive campaign of letter-writing and petition signing, by so-called
"representative workers". Referring to the open letter discussed in
paragraph 47 above, the ICFTU considered that this letter was part of a
campaign by the Government to counter the Conference resolution.
63. Appended to the ICFTU communication were 21 documents providing over
300 pages of
detailed information on the recent practice of forced labour in Myanmar.
According to the
ICFTU, this information showed that in practice forced labour had continued
unabated. The information included detailed testimonies, reports and
photographs of forced labour in various areas. On the basis of one of these
reports alone, the ICFTU believed that at least 80,000 individuals,
including women, children and elderly persons, from four districts of Karen
State were forced to perform labour during the period November 2000 to
January 2001. Two army Officers were named in the report as having ordered
and organised forced labour on road construction.
64. An essential part of the ICFTU submission consisted of translations, as
well as many
copies of originals, of orders demanding forced labour issued by the
military or paramilitary groups under its control, as well as the local
administration and the Myanmar Police Force. The submission contained over
500 such orders issued after May 1999, including many that had been issued
since November 2000. These orders are similar in style, form and content to
the orders already examined by the Commission of Inquiry and the regular
ILO supervisory mechanisms and found to be authentic.
65. Details of a large number of specific instances of forced labour were
contained in the
ICFTU submission, relating to portering for regular patrols and military
operations, the
construction of roads, bridges and fences, the construction and servicing
army camps,
including the provision of building materials for these camps, the
provision of transport for
the military, the collection of firewood for use by army camps or in
army-owned brick kilns, work in army-owned rice plantations, and work as
unarmed sentries or messengers for the military. One order from an army
battalion informed village heads that porters and bullock carts would only
be requisitioned for use on military operations, and not for administrative
purposes, but in general the pattern of forced labour demands appeared to
be essentially unchanged from the practice reported by the Commission of
Inquiry. The large number of different military units and other authorities
issuing demands for forced labour suggested that the practice remained
widespread.
66. A document prepared by the Federation of Trade Unions of Burma, and
contained in the ICFTU submission, indicated that a number of means had
been used by the authorities to cover up their use of forced labour. These
included issuing orders for villagers to attend meetings at the army camp,
where they were requisitioned for forced labour, rather than issuing
explicit orders for forced labour; issuing undated, unsigned and unstamped
orders; demanding that written orders were returned to the issuing army
personnel; using civilian authorities to requisition labour on behalf of
the military; and arbitrarily arresting young, healthy persons, who after a
few days in prison would be sent to work as porters for the military,
dressed in used army uniforms (but who could be recognized as porters as
they were barefoot).
Concluding comments
67. In the light of the above, and in accordance with paragraph 1(a) of the
Conference resolution, the question of the implementation of the Commission
of Inquiry's recommendations and of the application of Convention No. 29 by
Myanmar will be discussed by the 89th Session of the International Labour
Conference, at a sitting of the Committee on the Application of Standards
specially set aside for the purpose. In this connection, the Governing Body
may wish to request the Director-General to transmit to the Conference
Committee the present report together with the record of its consideration,
as well as any further information of relevance for its discussion. The
Conference Committee will have before it the report of the CEACR together
with any other relevant information.
Geneva, 9 March 2001.
Appendix 1
Statement by His Excellency U Mya Than,
Leader of the Myanmar Observer Delegation
at the Plenary of the 279th session of the
ILO Governing Body after the adoption of
the decision on the situation of Myanmar (1)
(Geneva, 16 November 2000)
_________________________
(1) This statement could not be given to the 279th Session of the Governing
Body and is reproduced here for information.
Mr. Chairman,
Today is indeed a sad and solemn day for the ILO. It will go down in the
history of the ILO as
the most deplorable day for this Organization.
Today Myanmar is singled out for punitive action. Tomorrow it may be
another developing country. As all of us are aware, judgement of observance
or non-observance of labour standards are, more often than not, subjective
and arbitrary and, in some instances, even politically-motivated.
In the case of Myanmar, the problem arose from the arbitrary judgement,
based on misinformation. This misinformation emanates from elements,
opposed to the Myanmar Government, insurgent groups and self-proclaimed
workers' organizations which are more politically-motivated than dedicated
to promoting the interests of workers. One such dubious workers'
organization has only a handful of members, who represent no one but
themselves.
Mr. Chairman,
It is the sadder and the more deplorable, because the proponents of the
draft decision to apply
sanctions to Myanmar completely ignore the concrete and positive measures,
taken by the Myanmar
Government.
They turn a blind eye to the comprehensive, concrete and solid framework of
legislative,
executive and administrative measures put in place in Myanmar and the offer
by the Myanmar
Government to receive an ILO representative, based in the ILO Regional
Office in Bangkok or in
Geneva, to assist the national supervisory mechanism in the implementation
of the ILC's
recommendation.
Notwithstanding the more prudent approach, advocated by many of its Member
States, the
Governing Body has chosen the path of confrontation and coercion by
applying sanctions under
Article 33. The ASEAN Member States, together with like-minded countries,
have expressed reservations against the action taken by the Governing Body.
Myanmar appreciates the principled
stands, taken by those countries that Article 33 of the ILO Constitution
should never be invoked and that, sanctions should not be applied to a
Member State.
Mr. Chairman,
It is most regrettable that a drastic decision, contrary to what many
members believe in and
uphold, was taken by the Governing Body. It is obvious that this
unwarranted and unjustified action by the Governing Body is aimed at
exerting pressure on Myanmar.
The decision, just taken by the Governing Body, will no doubt place the
credibility, the
integrity and the reputation of the Governing Body and the ILO in question.
It penalizes a Member State which has been voluntarily cooperating with the
ILO and has put in place the comprehensive, concrete and solid framework of
legislative, executive and administrative measures in accordance with the
ILC's resolution.
This action by the Governing Body is most unfair, most unreasonable and
most unjust.
This decision is totally unacceptable to my delegation.
For these reasons, my delegation totally and categorically rejects the
decision and dissociates
itself from it and any activities and effects connected with it.
As such, Myanmar will cease to cooperate with the International Labour
Organization in
relation to the ILO Convention 29 and any activity connected with it.
I thank you, Mr. Chairman.
Appendix 2
Resumé of the concrete measures
taken by the Myanmar Government (1)
______________________
(1) Appended to the letter of 6 December 2000 from the Permanent
Representative of the Myanmar
Mission
- Since the 88th Session of the ILC which adopted the resolution on
Myanmar, the following
steps have been taken to put in place a framework of legislative, executive
and administrative
measures to comply with the ILC resolution.
- Initially, intensive consultations were made among all departments and
agencies concerned
regarding the measures needed to fulfil the conclusions of the report of
the Technical
Cooperation Mission (TCM) and the ILC resolution.
- An independent study group headed by Baron Walter von Marschall, former
Ambassador of
FRG to Myanmar was invited to have an independent opinion of what
constitutes the satisfactory measures regarding the framework that the LC
resolution referred to. The group visited Myanmar from 25 September to 6
October, 2000 and gave various options which in their opinion would satisfy
the required measures mentioned in the ILC resolution.
- In addition, at the invitation of the Government of Myanmar, a
five-member Technical
Cooperation Mission (TCM) visited Myanmar from 20 to 26 October, 2000.
Based on the advices and suggestions of the TCM, a new legislative order
was issued on 27 October 2000. The order made it clear that the requisition
of forced labour or involuntary services is illegal and is an offence under
the existing laws of the Union of Myanmar. It also spells out the
consequences for the breach of the legislative order by explicitly spelling
out that any one, including the members of the armed forces shall have
action taken against him under Section 374 of the Penal Code or any other
existing laws. In the words of the TCM, this order has general applicability.
- This Order was supplemented by a directive from the State Peace and
Development Council
(SPDC), the highest organ of state power in Myanmar. The SPDC is the
legislative authority,
and as the TCM has pointed out, the highest military authority and the
highest civilian
authority in the country. This document, TCM pointed out "provides
confirmation that there is
political will at the highest level to reach a solution".
- Apart from this legislative measure, concrete and detailed framework of
administrative and
executive measures have been instituted.
- This consists of the Ministerial Committee headed by the Minister of
Labour and the
Implementation Committee on Convention 29 as well as a national supervisory
mechanism for
monitoring compliance.
- Myanmar has thus put in place a concrete, comprehensive and solid
framework of legislative,
administrative and executive measures to ensure that there is no forced
labour both in law and
in practice.
- With regard to the ILO presence, Myanmar is also willing to accept an ILO
representative,
either based in the Regional Office in Bangkok or based in Geneva, to
observe, assess or assist
the national supervisory mechanism in the implementation of Convention 29.
The representative of ILO will be given full cooperation to effectively
carry out his responsibilities. The representative will enjoy, for these
purposes and for the duration of his mission, the same legal protection and
status accorded to officials of comparable rank in the United Nations. The
representative, either based in the ILO Regional Office in Bangkok or in
Geneva, may make frequent visits to Myanmar, as the need arises.
- In view of this concrete, comprehensive and solid framework of
legislative and executive
measures and Myanmar's willingness to address the issue of the ILO
presence, the actions
envisaged by the ILC are no longer required and necessary. The Members of
the Governing Body ought to take the necessary decision so that the
measures envisaged by the ILC will not come into effect on 30 November 2000.
Appendix 3
Communication dated 22 December 2000 from
the Director-General to the Minister for Labour
of the Government of Myanmar
Dear Mr. Minister,
I write concerning the action taken by the Governing Body on 16 November,
at its 278th Session, with respect to the effect given by the Government of
Myanmar to the recommendations of the Commission of Inquiry concerning the
application of Convention No. 29. The Governing Body had before it on this
occasion the report of the second ILO technical cooperation mission to
Myanmar, which visited your country from 20 to 26 October.
While some of the positive developments reflected in the report of the
technical cooperation
mission and in subsequent documents provided by the authorities were
acknowledged, the
Governing Body was, as you know, not satisfied, that the conditions for the
non-implementation of the measures listed in paragraph 1 of the Conference
resolution had been met. These measures are taking effect on 30 November,
and I have notified ILO Members and international organizations concerned
accordingly, as contemplated in the relevant paragraph of the resolution.
At the same time, the strong sense of the Governing Body was, as noted by
the Chair, that the
Director-General should continue to extend cooperation to the Government of
Myanmar in order to
promote the full implementation by that Government of the recommendations
of the Commission of
Inquiry. This conclusion is indeed in line with the mandate I have received
from the Conference
itself.
The Governing Body debate underlined once more that the ILO's objective has
always been,
and remains, the implementation of the recommendations of the Commission of
Inquiry. It is thus
my sincere hope that the measures now in force will soon become unnecessary
as a result of your
Government's full application of these recommendations.
In that connection, I have noted that, according to a statement issued
shortly after the debate
by the Ministry of Foreign Affairs, Myanmar intends to adhere to and
implement the positive
measures taken at the end of the technical cooperation mission visit. Let
me assure you that, for its part, the Office stands ready to extend its
cooperation for the purposes of ensuring the implementation of the
recommendations of the Commission of Inquiry in such a way that positive
and credible developments could already be reported to the Governing Body
at its next session.
Yours sincerely,
(Signed) Juan Somavia.
Appendix 4
Communication dated 11 February 2001 from the
Government of Myanmar to the Director-General
forwarded by the Permanent Mission of Myanmar
Excellency,
I received your letter of 22 December 2000 in which you were kind enough to
inform that
your office stands ready to extend cooperation to Myanmar.
Myanmar had received two Technical Cooperation Missions from ILO in our
efforts to make
our domestic legislation fully in line with Convention 29. With the
assistance of the Technical
Cooperation Mission which visited Myanmar from 20 to 26 October 2000, we
had put in place a
framework of legislative, executive and administrative measures to make
forced labour illegal both in law and in practice. But powerful forces in
the ILO Governing Body totally ignored the concrete measures taken by
Myanmar as well as its demonstrated desire to cooperate with ILO. I regret
to say that the way things were conducted at the 279th Session of the
Governing Body was a grave travesty of the rules of procedure of the ILO.
As a result, the proposal put forward by Malaysia on behalf of ASEAN
countries, supported by India and China, to defer Implementation of the
measures in ILC resolution on Myanmar was not put to a vote. The Governing
Body's discussions on the matter, therefore, ended inconclusively. This has
led to the entry into force of the measures envisaged in the ILC
resolution. This is a great injustice on Myanmar, which had in good faith
implemented its obligations under Convention 29.
However, we are resolute in our endeavours to implement the framework of
legislative, executive and administrative measures which we have put in
place. The Committee for implementation of Convention 29 is holding its
regular meetings to review the situation. The national monitoring mechanism
which we have put in place is also functioning smoothly. There had been a
few cases where the latest legislative order was breached. These cases were
investigated and necessary legal action was taken against the perpetrators.
I wish to thank you for your readiness to extend cooperation to Myanmar. I
fully realize that
our national efforts that involved ILO would receive better acceptance by
our detractors.
However, under the present circumstances, until such time that Myanmar
receives fair and
equitable treatment that must necessarily be accorded to all members of the
ILO, we must ourselves continue our national efforts for the total
elimination of practice of force labour in Myanmar.
I wish to assure you that we will continue to take steps to ensure that
forced labour is illegal in Myanmar both in law and in practice. I also
wish to assure that we will resolutely implement the framework of
legislative, executive and administrative measures we have put in place.
Yours sincerely,
(Signed) Major General Tin Ngwe,
Minister for Labour,
Union of Myanmar.
Appendix 5
Communication dated 1 March 2001 from the
Director-General to the Minister for Labour of
the Government of Myanmar
Dear Mr. Minister,
I acknowledge receipt of your letter dated 11 February 2001 in reply to mine of
22 December 2000, and would like to offer the following comments.
As regards the second paragraph of your letter, I can assure you that your
views, as well as the text of the statement which your Ambassador intended
to make and which reached the Chairman's Office after the closure of the
session, will be reflected appropriately in the documentation before the
next session of the Governing Body.
I have taken note of your statement that Myanmar is "resolute in our
endeavours to implement
the framework of legislative, executive and administrative measures which
we have put in place"
with a view to the total elimination of the practice of forced labour in
Myanmar, and in particular of the information that some action has already
been taken against the perpetrators of such practices.
However it is clear that Myanmar cannot expect to receive credit for these
endeavours in the
absence of an objective assessment of their practical implementation and
actual impact. The ILO
alone is in a position to provide such an assessment with the authority
necessary to carry legal, practical and political consequences at the
international level. This is all the more relevant in the light of the
continuing flow of information from various sources concerning the issues
in question.
For these reasons I would like to reiterate that the Office stands ready to
engage in discussions about the possible format and modalities such an
objective assessment could take. In my view, it would be highly desirable
that such discussions take place before the next session of the Governing
Body. It should be recalled that the International Labour Conference will,
in accordance with paragraph 1(a) of its resolution, review the situation
at its next session in June, on the basis of all relevant information then
available.
Yours sincerely,
(Signed) Juan Somavia.
Appendix 6
Resolution adopted by the International Labour
Conference at its 88th Session (June 2000)
The International Labour Conference,
Meeting at its 88th Session in Geneva from 30 May to 15 June 2000,
Considering the proposals by the Governing Body which are before it, under
the eighth item
of its agenda (Provisional Record No. 4), with a view to the adoption,
under article 33 of the ILO Constitution, of action to secure compliance
with the recommendations of the Commission of
Inquiry established to examine the observance by Myanmar of its obligations
in respect of the
Forced Labour Convention, 1930 (No. 29),
Having taken note of the additional information contained in the report of
the ILO technical cooperation mission sent to Yangon from 23 to 27 May 2000
(Provisional Record No. 8) and, in particular, of the letter dated 27 May
2000 from the Minister of Labour to the Director-General, which resulted
from the mission,
Considering that, while this letter contains aspects which seem to reflect
a welcome intention
on the part of the Myanmar authorities to take measures to give effect to
the recommendations of the Commission of Inquiry, the factual situation on
which the recommendations of the Governing Body were based has nevertheless
remained unchanged to date,
Believing that the Conference cannot, without failing in its
responsibilities to the workers
subjected to various forms of forced or compulsory labour, abstain from the
immediate application of the measures recommended by the Governing Body
unless the Myanmar authorities promptly take concrete action to adopt the
necessary framework for implementing the Commission of Inquiry's
recommendations, thereby ensuring that the situation of the said workers
will be remedied more expeditiously and under more satisfactory conditions
for all concerned;
1. Approves in principle, subject to the conditions stated in paragraph 2
below, the actions
recommended by the Governing Body, namely:
(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 2001
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;
2. Decides that those measures will take effect on 30 November 2000 unless,
before that date,
the Governing Body is satisfied that the intentions expressed by the
Minister of Labour of Myanmar in his letter dated 27 May have been
translated into a framework of legislative, executive and administrative
measures that are sufficiently concrete and detailed to demonstrate that
the recommendations of the Commission of Inquiry have been fulfilled and
therefore render the implementation of one or more of these measures
inappropriate;
3. Authorizes the Director-General to respond positively to all requests by
Myanmar that are
made with the sole purpose of establishing, before the above deadline, the
framework mentioned in the conclusions of the ILO technical cooperation
mission (points (i), (ii) and (iii), page 8/11 of Provisional Record No.
8), supported by a sustained ILO presence on the spot if the Governing Body
confirms that the conditions are met for such presence to be truly useful
and effective.
Appendix 7
Recommendations of the Commission of Inquiry
(extracts)
In paragraph 539 of its report, the Commission of Inquiry urged 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, and again announced in the Government's
observations on the complaint. 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. 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 [of the Commission's report] 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 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 non-observance by Myanmar of the Forced
Labour Convention, 1930 (No. 29), 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.2()
______________________
(2) Paragraph 539 of the 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). ILO Official Bulletin, Vol.
LXXXI, 1998, Series B,
Special Supplement. The full text of the report is also available on the
ILO website at the following address:
<http://www.ilo.org/public/english/standards/relm/gb/docs/gb273/myanmar.html.>.
Appendix 8
Observations from the CEACR* (2001 Report)
Myanmar (ratification: 1955)
________________________
[* Committee of Experts on the Application of Conventions and
Recommendations- DA]
1. The Committee notes that the Government has not supplied a report on the
application of the
Convention. Following the recommendations of the Commission of Inquiry
established to examine
the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29),
the Committee has,
however, taken note of the following information:
- the information presented by the Government to the Director-General of
the ILO in communications dated 21 January, 20 March, 27 May, 29 October
(as supplemented subsequently), and 3, 15 and 17 November 2000;
- the information submitted to, and the discussions held in, the Governing
Body of the ILO at its 277th and 279th Sessions in March and November 2000;
- the information and discussion at the International Labour Conference at
its 88th Session
(May-June 2000);
- the resolution adopted by the International Labour Conference at its 88th
Session concerning
the measures recommended by the Governing Body under article 33 of the ILO
Constitution
on the subject of Myanmar to secure compliance with the recommendations of
the Commission of Inquiry, and the entry into effect of those measures on
30 November 2000, following consideration of the matter by the Governing
Body at its 279th Session (November 2000);
- the resolutions adopted by the General Assembly of the United Nations at
its 54th Session (17
December 1999) and by the United Nations Commission on Human Rights at its
56th Session (March-April 2000) on the situation of human rights in Myanmar
(extracts in International Labour Conference, 88th Session, Geneva, 2000,
Provisional Record No. 4, Annex III);
- the second report of the Director-General of the ILO to the members of
the Governing Body
on measures taken by the Government of Myanmar, dated 25 February 2000;
- the interim report prepared by judge Rajsoomer Lallah, Special Rapporteur
of the Commission
on Human Rights on the situation of human rights in Myanmar, dated 22
August 2000 [(UN
document A/55/359]; and the note by the Secretary-General of the United
Nations on the same
subject, dated 20 October 2000 [UN document A/55/509];
- the reports of the ILO technical cooperation missions to Myanmar of May
2000 [(ILC, 88th
Session, Geneva, 2000, Provisional Record No. 8] and October 2000
[GB.279/6/1 and Add.1];
- a communication dated 15 November 2000 in which the International
Confederation of Free
Trade Unions submitted to the ILO voluminous documentation referring to the
imposition of
forced labour in Myanmar during the period June-November 2000, a copy of
which was sent
to the Government for such comments as it may wish to present;
- a press release issued on 17 November 2000 by the Ministry of Foreign
Affairs of the Union
of Myanmar in Yangon, and an information sheet issued by the Myanmar
Information Committee in Yangon on a press conference held on 18 November
2000 by the Government on the decision of the ILO Governing Body to
activate measures on the subject of Myanmar.
2. Information available on the observance of the Convention by the
Government of Myanmar will be discussed in three parts, dealing with: (i)
the amendment of legislation; (ii) any measures taken by the Government to
stop the exaction in practice of forced or compulsory labour and
information available on actual practice; (iii) the enforcement of
penalties which may be imposed under the Penal Code for the exaction of
forced or compulsory labour.
I. Amendment of legislation
3. In paragraph 470 of its report of 2 July 1998, the Commission of Inquiry
noted:
... that section 11(d), read together with section 8(1)(g), (n) and (o) of
the Village
Act, as well as section 9(b) of the Towns Act provide for the exaction of
work or services
from any person residing in a village tract or in a town ward, that is,
work or services for
which the said person has not offered himself or herself voluntary, and
that failure to comply with a requisition made under section 11(d) of the
Village Act or section 9(b) of the Towns Act is punishable with penal
sanctions under section 12 of the Village Act or section 9(a) of the Towns
Act. Thus, these Acts provide for the exaction of "forced or compulsory
labour" within the definition of Article 2(1) of the Convention.
The Commission of Inquiry further noted that the wide powers to requisition
labour and services
under these provisions do not come under any of the exceptions listed in
Article 2, paragraph 2, of the Convention and are entirely incompatible
with the Convention. Recalling that the amendment of these provisions had
been promised by the Government for over 30 years, the Commission urged the
Government to take the necessary steps to ensure that the Village Act and
the Towns Act be brought into line with the Convention without further
delay, and at the very latest by 1 May 1999 (paragraph 539(a) of the
Commission's report).
4. In its previous observation, the Committee noted that by the end of
November 1999, neither the Village Act nor the Towns Act had been amended,
nor had any draft law proposed or under
consideration for that purpose been brought to the knowledge of the
Committee. However, an
"Order Directing Not to Exercise Powers Under Certain Provisions of the
Town Act, 1907 and the
Village Act, 1907" (No. 1/99) was issued by the Government on 14 May 1999,
which in fact still
reserved the exercise of powers under the relevant provisions of the
Village Act and the Towns Act which remain incompatible with the
requirements of the Convention.
5. The Committee notes from the report of the October 2000 ILO technical
cooperation mission to
Myanmar (GB.279/6/1, paragraphs 9 and 10, Annexes 13 and 19) that a draft
text providing for the amendment of the Village Act and the Towns Act
through an amendment of Order No. 1/99 was not retained by the Government.
However, the same report (in Annex 19) reproduces the English text of an
"Order Supplementary Order No. 1/99" made by the Ministry of Home Affairs
under the
direction of the State Peace and Development Council on 27 October 2000
which modifies Order
No. 1/99 so as to order "responsible persons including members of the local
authorities, members of the armed forces" etc. "not to requisition work or
service notwithstanding anything contained" in the relevant sections of the
Towns and Village Acts, except in cases of emergency as defined in Article
2(2)(d) of the Convention (GB.279/6/1, Annex 19). The Burmese text of this
Order of 27 October, which was to be published in the Myanmar Gazette, has
not yet been supplied to the ILO.
6. The Committee observes that the amendment of the Village and Towns Acts
sought by the
Commission of Inquiry as well as the present Committee and promised by the
Government for
many years has not yet been made. It again expresses the hope that the
Village Act and the Towns Act will at last be brought into conformity with
the Convention.
7. The Committee nevertheless notes that Order No. 1/99 as supplemented by
the Order of 27 October 2000 could provide a statutory basis for ensuring
compliance with the Convention in practice, if given effect bona fide not
only by the local authorities empowered to requisition labour under the
Village and Towns Acts, but also by civilian and military officers entitled
to call on the assistance of local authorities under the Acts. This, in the
view of the Committee, calls for further measures to be undertaken, as
indicated by the Commission of Inquiry in its recommendations in paragraph
539(b) of its report.
II. Measures to stop the exaction in practice
of forced or compulsory labour and information
available on actual practice
A. Measures to stop the exaction in practice
of forced or compulsory labour
8. In its recommendations in paragraph 539(b) of its report of July 1998,
the Commission of Inquiry indicated that steps to ensure that in actual
practice no more forced or compulsory labour be imposed by the authorities,
in particular the military, were:
... 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. 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 [of the
Commission's report] 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 ... .
9. The Committee notes from the report of the October 2000 ILO technical
cooperation mission to
Myanmar, the suggestion made by the mission of a Supplementary Order or
directive from the
Office of the Chairman of the State Peace and Development Council
concerning requisition of
labour or services (GB.279/6/1, Annex 13). The suggested text was to order
all state authorities, including military, police and civilian authorities
and their officers, not to requisition persons to provide labour or
services for any purpose, nor to order others to requisition such labour or
services, regardless of whether or not payment is made for said labour or
services, except in cases of emergency as defined in Article 2(2)(d) of the
Convention. The suggested prohibition was to include but not be limited to
the requisition of labour or services for the following purposes:
(a) portering for the military (or other military/paramilitary groups, for
military campaigns or regular patrols);
(b) construction or repair of military camps/facilities;
(c) other support for camps (such as guides, messengers, cooks, cleaners,
etc.);
(d) income generation by individuals or groups (including work in
army-owned agricultural and
industrial projects);
(e) national or local infrastructure projects (including roads, railways,
dams, etc.);
(f) cleaning/beautification of rural or urban areas.
Similar prohibitions were to apply to the requisition of materials or
provisions of any kind and to demands of money except where due to the
State or to a municipal or town committee under
relevant legislation. Furthermore, the suggested text was to provide that
if any state authority or its officers requires labour, services, materials
or provisions of any kind and for any purpose, they must make prior
budgetary arrangements to obtain these by a public tender process or by
providing market rates to persons wishing to supply these services,
materials or provisions voluntarily, or wishing to offer their labour.
10. The Committee notes that the text suggested by the mission was not
adopted, but that the English versions of several instructions dated 27 and
28 October 2000 and 1 November 2000 were
forwarded to the ILO after the departure of the mission and reproduced in
addenda to the mission's report (GB.279/6/1(Add.1)(Rev.1) and (Add.2)).
11. The instruction dated 27 October 2000 "Prohibiting Requisition of
Forced Labour" is signed for the Director-General of the Police Force and
addressed to all units of the police force. The instruction dated 28
October 2000 on the same subject is addressed by the Director-General of
the General Administration Department of the Ministry of Home Affairs to
all State/ Divisional Commissioners and General Administration Departments
and requires, inter alia, Order No. 1/99 and the order supplementing it to
be displayed separately on noticeboards of all the levels of peace and
development councils as well as the General Administration Departments.
12. The instruction dated 1 November 2000 "Prohibiting Requisition of
Forced Labour" is signed at the highest level, by Secretary-1 of the State
Peace and Development Council, and addressed to the Chairmen of all State
and Divisional Peace and Development Councils. The latter instruction thus
reaches beyond institutions that come under the authority of the Ministry
of Home Affairs. It is, however, primarily directed to the enforcement of
Order No. 1/99 and the Order of 27 October 2000 supplementing it, which are
limited in scope to the requisition of forced labour under the Village Act
and the Towns Act, i.e. not by civilian or military state officers but by
local authorities, who may requisition labour under the Acts when called
upon to provide assistance to civilian and military state officers.
Nevertheless, the instruction dated 1 November interprets the Supplementing
Order of 27 October 2000 as follows:
2. ... The Supplementing Order renders the requisition of forced labour
illegal and
stipulates that it is an offence under the existing laws of the Union of
Myanmar.
Responsible persons, including the local authorities, members of the armed
forces,
members of the police force and other public service personnel are also
prohibited not to
requisition forced labour and are instructed to supervise so that there
shall be no forced
labour.
It would appear to the Committee that a bona fide application of this
prohibition should cover he typical case of members of the armed forces who
order local authorities to provide labourers, even if the manner of
complying with such order - through requisition or hiring of labourers or
otherwise - is left to the local authorities.
13. The instruction dated 1 November 2000 continues as follows:
3. Therefore, it is hereby directed that the state and divisional peace and
development councils shall issue necessary instructions to the relevant
district and
township peace and development councils to strictly abide by the
prohibitions contained
in Order No. 1/99 and the Supplementing Order of the Ministry of Home
Affairs and also
to effectively supervise to ensure that there shall be no forced labour
within their
respective jurisdictions.
4. Responsible persons, including members of the local authorities, members of
the armed forces, members of the police force and other public service
personnel who fail
to abide by the said Order No. 1/99 and the Supplementing Order shall be
prosecuted
under section 374 of the Penal Code or any other existing laws.
It would appear to the Committee that again, as set out in paragraph 12
above, a bone fide
application of the instruction would include, in the scope of point 4 of
the instruction, members of the armed forces who order local authorities to
supply labour.
14. It remains to be seen whether the "necessary instructions" yet to be
issued by the state and divisional peace and development councils under
point 3 of the instruction of 1 November will contain the kind of details
necessary for a feasible implementation. Such details were set out by the
Commission of Inquiry in paragraph 539(b) of its report and included by the
October 2000 technical cooperation mission in its suggestion mentioned in
paragraph 9 above.
15. The three instructions forwarded so far to the ILO do not yet contain
any positive indication on the manner in which authorities that have been
used to rely on forced and unpaid labour contributions of the population
are hereafter to make realistic provision for the labour and services they
may require.
16. Furthermore, the three instructions do not spell out the various forms
of forced labour found by the Commission of Inquiry and this Committee to
be mainly imposed in practice, as listed in paragraph 9 above. In this
regard, the Committee recalls that most of the forms of forced labour or
services requisitioned concerned the military. The Committee notes that
"members of the armed forces" are specifically included among the
responsible persons listed in point 4 of the instruction dated 1 November
2000 (quoted in paragraph 13 above). However, in point 3 of the same
instruction, the order to issue the necessary further - and, hopefully,
more detailed - instructions is addressed to the state and divisional peace
and development councils (which in fact include officers of the armed
forces), but not to the regional commanders of the armed forces in their
military capacity.
17. In the absence of specific and concrete instructions to the civilian
and military authorities containing a description of the various forms and
manners of exaction of forced labour, the application of the provisions
adopted so far turns upon the interpretation in practice of the notion of
"forced labour". This cannot be taken for granted, as shown by the various
Burmese terms used sometimes when labour was exacted from the population -
including "loh ah pay", "voluntary" or "donated" labour. The need for
clarity on the point is underscored by the Government's recurrent attempts
to link the pervasive exaction of labour and services by mainly military
authorities to merit which may be gained in the Buddhist religion from
spontaneously offered help. The Commission of Inquiry recalled in paragraph
539(c) of its report that "the blurring of the borderline between
compulsory and voluntary labour, recurrent throughout the Government's
statements" was "all the more likely to occur in actual recruitment by
local or military officials".
18. Thus, clear instructions are still required to indicate to all
officials concerned, including officers at all levels of the armed forces,
both the kinds of tasks for which the requisition of labour is prohibited,
and the manner in which the same tasks are henceforth to be performed. The
Committee hopes that the necessary detailed instructions will soon be
issued, and that, in the words of paragraph 539(b) of the Commission of
Inquiry's report, provision will also be made for "the budgeting of
adequate means to hire free wage labour for the public activities which are
today based on forced and unpaid labour".
B. Information available on actual practice
(a) The practice August 1998 to December 1999
19. In his reports dated 21 May 1999 and 25 February 2000 to the members of
the Governing Body, the Director-General indicated that all information on
actual practice that was received (from workers' and employers'
organizations, intergovernmental organizations and governments of member
States of the ILO) in reply to his requests, referred to continued
widespread use of forced labour by the authorities, in particular by the
military.
(b) Information on the practice up to November 2000
20. In its communication dated 15 November 2000, the ICFTU refers to the
persistence of severe
breaches of the Convention by the military authorities. Documentary
appendices enclosed by the
ICFTU represent over 1,000 pages drawn from over 20 different sources and
include reports,
interviews of victims; over 300 forced labour orders, photographs, video
recordings and other
material. A few events described therein took place in the first half of
the year 2000; an
overwhelmingly large proportion of the documents concerns the period June
to November 2000.
21. An essential part of the ICFTU submission consists of hundreds of
"forced labour orders", issued mainly by the army but also by armed groups
under its control and elements of the local
administration. As stated by the ICFTU, these are similar in kind, shape
and contents to the orders already examined by the Commission of Inquiry
and the regular ILO supervisory mechanisms and found by same to be
authentic. Documentary materials submitted refer to the persistence on a
large scale of forced portering, including by women, and the murder of
forced porters no longer able to carry their burden. In addition to forced
portering, all other forced labour practices identified previously by the
Commission of Inquiry are referred to for the period June to November 2000.
A great number of specific reported instances include forced labour for the
building and maintenance of roads, bridges, railroads, water canals, dikes,
dams and reservoirs, as well as for the building, repair, maintenance and
servicing of army camps; and the requisition of labour as well as seeds,
fertilizer, materials and equipment for army-held agricultural land,
forests and installations.
22. As indicated above, copies of the ICFTU communication of 15 November
2000, including the
voluminous documentation submitted, were sent to the Government for such
comments as it may
wish to present.
III. Enforcement
23. In paragraph 539(c) of its recommendations the Commission of Inquiry
urged the Government to take the necessary steps to ensure:
... that the penalties which may be imposed under section 374 of the Penal Code
for the exaction of forced labour or compulsory labour be strictly
enforced, in conformity
with Article 25 of the Convention. This requires thorough investigation,
prosecution and
adequate punishment of those found guilty.
24. In practice, no action whatsoever under section 374 of the Penal Code
has so far been brought to the knowledge of the Committee.
25. The Committee notes that point 4 of the instruction dated 1 November
2000 from the State Peace and Development Council to All State and
Divisional Peace and Development Councils, reproduced in paragraph 13,
provides for the prosecution of "responsible persons" under section 374 of
the Penal Code. Similar clauses are included in point 3 of the instruction
dated 27 October, and point 6 of the instruction dated 28 October, referred
to in paragraph 11 above. Moreover, under points 4 to 6 of the instruction
dated 27 October 2000, addressed by the Director-General of the Police
Force to all units of the police force:
4. If any affected person files a verbal or written complaint to the police
station of
having been forced to contribute labour, the latter shall record the
complaint in Forms A
and B of the police station and send the accused for prosecution under
section 374 of the
Penal Code.
5. It is hereby directed that the police stations and units concerned at
various levels
shall be further instructed to make sure their strict compliance with the
said Order as well
as to supervise so that there shall be no requisition of forced labour. A
copy of the Order
Supplementing Order No. 1/99 issued by the Ministry of Home Affairs on 27
October
2000 is enclosed herewith.
6. It is instructed to acknowledge receipt of this directive and to report
back actions
taken on the matter.
26. With regard to point 4 of the latter instruction (dated 27 October
2000) the Committee hopes that prosecutions under section 374 of the Penal
Code will be brought by the law enforcement agencies on their own
initiative, without waiting for complaints by the victims, who may not
consider it expedient to denounce the "responsible persons" to the police.
The Committee hopes that in commenting on indications that the imposition
of forced labour has continued beyond October 2000, the Government will
also report on any concrete action taken under section 374 of the Penal Code.
27. The Committee has noted the assurance, in the Government's letter dated
29 October 2000 to the Director-General of the ILO, of the "political will
to ensure that there is no forced labour in Myanmar, both in law and in
practice". It also has taken due note of the Order Supplementing Order No.
1/99 and the three instructions issued between 27 October and 1 November
2000, and of the view of the Employer members of the Governing Body at its
279th Session (November 2000) that this was "too little too late". At a
press conference held 18 November 2000 in Yangon on the decision of the
Governing Body of the ILO to activate measures on the subject of Myanmar,
the Government indicated that it would no longer cooperate with the ILO in
relation to the Forced Labour Convention, 1930 (No. 29), but that it would
continue to take steps to prevent forced labour, as this was its policy.
The Committee hopes that the Government will thus at last take the
necessary measures to ensure the observance in law as well as in practice
of the Convention, a basic human rights instrument freely ratified by
Myanmar. It also hopes that the Government, which had failed to take part
in the proceedings before the Commission of Inquiry, will avail itself of
the opportunity to present its views and progress in reporting on the
application of the Convention, in conformity with its obligations under
article 22 of the ILO Constitution.
[The Government is asked to report in detail in 2001.]
Appendix 9
Note on UNHCR's activities in
Myanmar and compulsory labour
UNHCR has been operational in two districts of Myanmar since 1994 in
facilitating repatriation and reintegration of approximately 230,000 Muslim
returnees from Bangladesh into Northern Rakhine State. The activities of
UNHCR are geared towards reintegration and stabilization of some 800,000
Muslim population including returnees in Maungdaw and Buthiadaung
districts. UNHCR and its implementing partners provide assistance
activities under various key sectors with the aim to improve and stabilize
the social and economic environment in Northern Rakhine State. UNCHR
conducts field monitoring of a number of protection issues affecting the
Muslim population including forced labour, and is promoting a more secure
legal status for this population. As regards compulsory labour, UNHCR
undertakes advocacy against its use, in particular through dialogue and
engagement with officials at the local level.
Areas of intervention
Agriculture
Considering the chronic rice deficit in the area of operation, efforts to
increase the production of rice are a given high priority. WFP's past
assistance has helped to ease the shortage of rice. Dams and dykes will
also be constructed to produce a second rice crop to targeted areas in
three townships. At the same time, livestock and aquaculture projects,
combined with training courses to enhance the capacity building of the
local population are taking place. There is no recourse to compulsory
labour in this field of activities and any labour needed for construction
purpose is contracted out or paid for as appropriate.
Health
UNHCR recognizes that good health and physical well-being constitute an
integral part of any
economic and social stability. Compared to other parts of Myanmar, the area
of UNHCR's
operation is characterized by its remoteness, rough geographical terrain,
dense population, and the low literacy rate. These factors contribute to
the apparent non-accessibility and underutilization of existing services,
which are manifested in the high infant and maternal morbidity and
morality, and high prevalence of malnutrition, malaria, tuberculosis and
diarrhoeal diseases. These health challenges are further complicated by the
under-equipped and under-staffed health facilities.
UNHCR started its health assistance projects in 1995. It invested not only
in upgrading government health facilities, but also in strengthening the
conventional health delivery system by improving its planning and
management functions, targeting an immediate impact at grass-roots
community level to introduce changes in health service provision and
utilization. This strategy allows focusing on advocating integrated
participatory development initiatives, which link health to education,
training, income generation, environmental sanitation and other related
sectors. Health activities make the population more productive in life.
Poor health leads the population to poverty as they cannot be economically
viable. In this sector, there is no resort to compulsory labour.
Education
UNHCR attempts, through a variety of educational undertakings, to
strengthen the links between
and among the returnee population, the local Muslim residents and other
communities in Northern
Rakhine State. This is based on the understanding that education helps
returnees' awareness.
Education activities help the illiterate population to be literate
increasing their coping mechanism including their communication with the
authorities as well as non-Muslim community. In general it helps them to
be more viable in various functions of life. There is no use of compulsory
labour in this sector of activities.
Income generation
Considering that majority of the poorest of the poor - returnees and locals
alike - are landless, casual labourers, UNHCR endeavours to promote among
them, income-earning activities. Positive effects have been frequently
reported in terms of an increased level of self-sufficiency which also
resulted in affected family sending more children to schools for education.
The objective of these activities is to help them settle and integrate in
the area, attain self-sufficiency, and be able to find their niches within
the local economy. To meet this objective, an extensive programme providing
financial assistance, training and agriculture activities has been
implemented since 1995. For example, the population in general have more
money than before. In view of no taxation, villagers are expected to
contribute to the development of Northern Rakhine State. In the past this
was seen as a direct contribution of labour, so called compulsory or even
forced labour. Now more villagers can afford paying a small amount of
contribution in money so that if there is a need to fix a bridge the money
they contribute could be used to hire casual labourers.
Rural infrastructure
Aside from the ongoing work of construction school jetties, health centres,
ponds, wells, dams, etc., UNHCR, BAJ and the Government of the Union of
Myanmar are working together to develop a
permanent road link from Maungdaw township to the southernmost point of
Maungdaw with the
ultimate goal of a road link from Maungdaw to Sittwe. This important artery
will accelerate the
development of the area, creating new economic opportunities as well as
providing immediate
assistance in the form of training and cash for work as well as food for
work (WFP) to the poorest villagers along the route. In undertaking
construction activities, UNHCR and BAJ have ensured that all labour is
appropriately compensated, including through food for work programmes.
Additionally, infrastructure activities have a direct effect. By building
bridges and improving
infrastructure in general, there is less demand for compulsory labour.
Community social services
It is estimated that up to 10 per cent of returnee population falls under
the category of Extremely Vulnerable Individuals (EVIs). These are the
female-headed households, widows, orphans, physically or mentally disabled
or elderly. Some 7,213 EVIs have been identified and various agencies,
including UNHCR, are actively targeting these groups for assistance
recognizing that inadequate social services and opportunities for
self-reliance exist. The ultimate goal is to identify and implement
interventions that will help these individuals and their families attain
self-sufficiency. Myanmar Red Cross Society (MRCS) is actively implementing
training and assistance activities in this sector, as UNHCR's implementing
partner.
Community Social Service helps EVIs who are not subject to compulsory
labour any way to be self-reliant. It also encourages community
participation including their obligation and responsibility to the
community. In some instances, this transforms potentially "compulsory
labour" into "voluntary community work". UNHCR encourages this trend as
after all, villagers have to maintain what UNHCR built for the general
development of the society.
On top of all the activities mentioned above which are interrelated, UNHCR
is doing general
advocacy, i.e. sensitizing the authorities not to impose compulsory labour.
The important point is UNHCR has nothing to do with "abetting" the practice
of compulsory labour, but on the contrary, it has been striving to reduce
the frequency of forced labour and to promote payment for labour.
Conclusion
It is UNHCR's observation that, due in part to its advocacy efforts, there
has been a decreasing trend in compulsory labour practices over the past
years. There has been improvement to the situation in terms of the
frequency of labour calls, the number of labourers required as well as the
number of days of labour. There also appears to have been more attempts
made to pay labourers for their work in money or in kind, although the
amounts paid are usually far below market rate. Nonetheless, it is also
observed that compulsory labour practices are continuing in areas where
there is heavy military presence and where porterage is required by the
military. UNHCR plans to maintain its presence and activities in the area
to consolidate the progress made. Its humanitarian activities are intended
to curtail practices such as forced labour.
21 December 2000.
Appendix 10
Note on UNDP's activities in Myanmar
in the context of the ILO resolution
Background
Since 1993, United Nations Development Programme (UNDP) assistance to
Myanmar has been provided under the framework of the UNDP Governing
Council's decision 93/21 of June 1993 which stipulates that "assistance
from the United Nations Development Programme and related funds to Myanmar
should be clearly targeted towards programmes having grass-roots level
impact in a sustainable manner, particularly in the areas of primary health
care, the environment, HIV/AIDS, training and education, and food
security". Consequently, a set of individual projects known as the Human
Development Initiative, or HDI, has been implemented since 1994.
In January 1996 and again in July 1998, the above mandate 93/21 was
reaffirmed by the successor
body to the Governing Council, the UNDP Executive Board, in its decision
No. 96/01 and No. 98/14 respectively.
The HDI has three overarching objectives:
- helping communities to meet their basic humanitarian needs;
- involving local people in planning and implementing activities that will
benefit them; and
- building local capacities for self-help activities.
While the UNDP Country office and the HDI projects and their executing
agencies continually seek to improve and refine the HDI's outreach and
benefits, the Governing Council and Executive Board decisions continue to
provide the parameters within which all HDI activities are planned,
implemented and evaluated.
Today, 11 projects work in an integrated manner with each other and with
grass-roots communities to meet basic needs and alleviate poverty in 23
townships with over 10,000 community groups and organizations in the Dry
Zone, the Ayeyarwaddy Delta, and the Shan, Chin, Kachin and Rakhine States
in Myanmar. An exception is the HIV/AIDS project, which covers areas with
high prevalence of HIV across the country. The HDI is now in its third
phase, which will end in 2001.
Project specific analysis
Three of the 11 HDI projects focus on agriculture and food security. They
aim at helping poor
farmers and the landless improve their production and increase their
incomes from forestry,
agriculture, aquaculture and livestock. They are implemented by the Food
and Agriculture
Organization of the United Nations (FAO) in the Dry Zone, the Shan State
and the Delta.
The primary health care project aims to help local people meet their own
primary health care
needs, and to improve their access to basic health services. It focuses on
the major threats of
malaria, leprosy, iodine deficiency and tuberculosis. It trains midwives
and auxiliary workers, and promotes family planning. This project is
executed by the United Nations Office for Project
Services (UNOPS).
The community water supply and sanitation project builds water-supply
systems for villages that
lack a supply of clean water and that often have no water at all in the dry
season. It also improves sanitation, for example by promoting simple
pit-latrines, and helps people build small bridges and other facilities
that they themselves identify. This project is managed by the United
Nations Center for Human Settlements (UNCHS).
The HIV/AIDS project, implemented by UNOPS, educates people to avoid
infection by the deadly
AIDS virus, and how to care for people who have the disease. It targets
groups at greatest risk of infection: commercial sex workers and their
clients, transport and mineworkers, fisher-folk and refugees.
The primary education project aims to improve the access to and the quality
of primary education, for example by building and renovating schools in
deprived areas, loaning textbooks to the neediest children, and by training
teachers. The project also works to bring literacy through non-formal
education activities to children and adults who cannot attend regular
school classes. This project is executed by the United Nations Educational,
Scientific and Cultural Organization (UNESCO).
The micro-finance project loans small amounts of money to villagers to help
them build small
businesses. The implementation of this project is subcontracted to
non-governmental organizations (NGOs): Private Agencies Collaborating
Together (PACT) in the Dry Zones, Groupe de Recherche et d'Echanges
Technologiques (GRET) in the Shan State, and Grameen Trust in the Delta.
This project is managed by the United Nations Office for Project Services
(UNOPS).
The remote townships project provides integrated community development
services (encompassing
social development, income generation and local capacity building in
agriculture, health, education, water supplies and credit) in ten townships
- in Rakhine, Kachin and Chin States. This project is executed by the
United Nations Office for Project Services (UNOPS).
The HDI Support project provides operational and technical support for the
HDI projects. It also undertakes key activities including social
mobilization and integrated development planning and management.
Finally, a preparatory assistance project is laying the groundwork for a
Basic Needs Assistance
Programme in Northern Rakhine State.
HDI project activities and compulsory labour
HDI projects, both by design and practice, are neither physical
inputs-driven nor construction-oriented. Conceptually, HDI relies more on
"software" improvements than hardware improvement
of the local rural communities at the grass-roots level.
The limited physical improvements supported by the projects (e.g.
renovation and construction of rudimentary village basic health care
centres, small water-supply systems such as water ponds, hand-dug wells,
rain-water collection tanks, community learning centres and primary
schools, village access roads and small bamboo/wooden bridges, farm level
soil conservation bunds, gulley-plugs, community woodlot nurseries, etc.)
are invariably small in size, limited in scope, demonstrative in purpose
and focused directly at serving a specific community only. HDI projects
support and facilitate these activities as strategic entry points to
initiate social mobilization of the rural communities concerned.
Both in theory and practice, the HDI approach is basically antithema to
compulsion. HDI is strictly based on voluntary participation. All HDI
activities by design are planned, implemented, monitored, operated and
maintained by the beneficiary communities themselves. If there are any
inputs, willing and able to be contributed by the beneficiaries, the type,
quantity and nature of these are proposed and decided by consensus of the
concerned community. HDI thus inculcates a more sustainable community
development approach based on voluntarism as an alternative to
non-voluntary administrative method of implementing development activities.
Thus, if and when HDI projects assist activities which could involve some
construction and earth work where labour inputs might be called upon, the
nature of the labour contribution (amount, timing, mode of remuneration,
etc.) must be proposed, discussed, agreed upon and monitored by the
concerned communities themselves, all strictly on voluntary basis. HDI
projects never force (and the projects have no authority to force) the
communities to contribute any inputs (including labour) in any of its
activities.
In response to the EB mandate, HDI was designed to implement its project
activities through UN
Executing Agencies and not through or with the government line departments.
Government
institutions concerned, from central to the village level, are informed of
what HDI is doing.
Decision-making authority, however, is strictly with the project management
which is not shared
with the Government. HDI projects are implemented through their own
separate, independent
channels managed by their own project staff, down to the community
beneficiaries level and not
through any existing government bureaucracy.
As required by the successive EB mandates, regular assessments by
independent missions have
been made on HDI performance. The EB in its decision 98/14 requested the
Administrator, to
continue to provide the Board, on an annual basis, with a report on the
progress and challenges in the implementation of HDI project activities. In
compliance with this request, the latest independent assessment and
evaluation mission was fielded during the period 27 May through 15 July of
2000. After reviewing the extensive documentation on each of the 11 HDI
projects and visiting selected project villages, including extensive
consultation with village beneficiaries in these project areas, the mission
concluded that "the content and objectives of all HDI projects were in full
conformity with the relevant provisions of the Governing Board and
Executive Council decisions".
Conclusion
In light of the above analysis we firmly believe that the ongoing HDI
project activities (the only UNDP-funded programme in the country) do not
and could not have the effect of directly or
indirectly abetting the practice of forced or compulsory labour in Myanmar.
Appendix 11
International ICFTU/ICFTU-APRO/ITS Conference
The global unions' Plan of Action on Burma
(adopted in Tokyo on 1 March 2001)
1. Strengthen material support to the FTUB.
2. Strengthen implementation of the ILO Burma resolution of June 2000,
including:
- review of your government's bilateral relations with junta;
- support holding of special Burma session during the International Labour
Conference, 2001;
- support inclusion of this issues at the next session of the United
Nations Economic, Social and Cultural Committee;
- seek consultations on Burma measures with your government under the ILO
Tripartite
Consultation (International Labour Standards) Convention, 1976 (No. 144);
- seek improved coordination of United Nations specialized agencies and
programmes so that
they do not in practice aid or abet forced labour.
3. Increase pressure on international financial institutions (IFTs) with
the same purpose.
4. Lobby European Union presidency and Member States to further strengthen
existing Burma
sanctions, in cooperation with the ETUC.
5. Lobby ASEAN member States to help bring about an end to forced labour
and the establishment of democracy.
6. Seek early discussions with companies maintaining business relations
with Burma in order that they withdraw trade and investments in Burma, or
alternatively face public exposure, union-driven consumer pressure and
boycotts.
7. Expand and strengthen workers' shareholder action against companies
trading with or operating in Burma.
8. Better inform rank-and-file membership, as well as the wider community,
about the situation.
9. Organize an International Day of Union Action for Burma on 1 May 2001
and use the occasion, in cooperation with civic and religious group, NGOs
and others to:
- lobby governments;
- pressure companies;
- create public awareness;
- target Burmese embassies;
- link the Burma situation with the ILO Declaration on Fundamental
Principles and Rights at
Work.
10. Keep the Burma Plan of Action on union agendas and inform your
membership of progress.
[END OF THE REPORT]