Trade sanctions against Burma fully

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Below are 3 documents from the ICFTU website. For the original format and=20
the ICFTU Burma page etc., go to the ICFTU website:=20
www.icftu.org  (versions: English, Francais, Espanol -- except Bill=20
Jordan's letter to the Commissioner, which is in English)


ICFTU ONLINE...PRESS RELEASE

Trade sanctions against Burma fully compatible with WTO rules, says ICFTU,=
=20
5/11/2001

Brussels November 05, 2001 (ICFTU OnLine): The persistence of forced labour=
=20
on a large scale in Burma, widely expected to be confirmed next week by the=
=20
International Labour Organisation (ILO), should prompt all Member States to=
=20
impose binding trade sanctions on the Burmese regime, says the ICFTU. With=
=20
the WTO Ministerial Meeting set to open in Qatar on Friday, the ICFTU has=20
released a 5-page report affirming that no legal obstacles stand in the way=
=20
of such sanctions by virtue of these countries' WTO commitments. The=20
briefing was sent along with a joint letter to EU Trade Commissioner Pascal=
=20
Lamy, by the European Trade Union Confederation (ETUC) and the ICFTU.

In its letter to the EU Trade Representative, the two Brussels-based labour=
=20
groups re-affirm that the International Labour Conference resolution of=20
June 2000 is fully compatible with WTO rules. It implies that those members=
=20
of the ILO, the EU included, who have expressed their commitment to the=20
eradication of forced labour in Burma are free to fulfil their ILO=20
responsibility to act in defence of the human rights of the Burmese people.

Last year's adoption by the ILO's annual conference of a strongly-worded=20
resolution on Burma opened the way for all Member states, as well as=20
employers organisations and trade unions, to adopt measures aimed at=20
ensuring that any links they might have with Burma would not aid or abet=20
the junta's use of forced labour.

On November 15, the letter continues, the ILO Governing Body is due to=20
discuss the report of the visit to Burma of the ILO's High Level Team=20
(HLT). However, this is unlikely to result in any finding that forced=20
labour is now being tackled effectively in Burma.

The ETUC and the ICFTU consider therefore, that after the November 15 ILO=20
Governing Body meeting, the EU Council should hold an extraordinary=20
discussion of Burma in order to act on the ILO's findings. The Council=20
should decide to step up the EU's measures to stop the violation of human=20
rights in Burma by implementing restrictions on the EU's imports from and=20
exports to that country and by imposing a ban on investments from the EU in=
=20
Burma.

=93The time has come for decisive economic pressure to be put on the Burmese=
=20
military in order to convince them that they should desist once and for all=
=20
from forced labour=94, says Bill Jordan, ICFTU General Secretary. The=
 junta's=20
systematic use of forced labour was assimilated by the 1998 report of an=20
ILO Commission of Inquiry to a crime against humanity.

While many governments and corporations have hidden behind an alleged=20
incompatibility of trade sanctions against Burma with WTO rules, the=20
ICFTU's briefing rejects their claims as "legally unfounded and morally=20
wrong", Jordan said today.

The legal briefing addresses six issues, including article XX(a) of the=20
GATT Agreement (General Agreement of Tariffs and Trade) which refers to=20
=93measures necessary to protect public morals=94 as an acceptable=20
justification for restrictions on trade. =93In this regard=94, the briefing=
=20
continues, =93it is clear that a national choice to refuse to undertake=
 trade=20
with a country employing forced labour is an expression of the public=20
morals of the country taking such measures.=94

Additionally, the briefing argues that swift use should be made of GATT=20
Agreement articles relating to human health - XX(b), prison labour - XX(e)=
=20
and the possibility to use the UN Charter for the maintenance of=20
international peace and security - XXI(c). Such measures, the ICFTU=20
believes, would put enormous pressure on the junta to cease the present=20
worsening level of violations of basic human rights, especially forced=
 labour.

=93The legal and the moral cases for action are clear. There is no further=
=20
excuse for governments refraining from implementing trade action against=20
Burma at the earliest possible time=94, the ICFTU General Secretary=
 concluded.

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

INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS (ICFTU)

WHY TRADE MEASURES TO IMPLEMENT THE ILO RESOLUTION ON BURMA WOULD BE=20
ENTIRELY COMPATIBLE WITH WTO RULES

Introduction

The International Labour Conference at its 88th Session (May-June 2000)=20
adopted a resolution on Burma which, inter alia: =93recommend[ed] to the=20
Organisation's constituents as a whole =96 governments, employers and=
 workers=20
=96 that they: (i) review, in the light of the conclusions of the Commission=
=20
of Inquiry, the relations that they may have with [Burma] and take=20
appropriate measures to ensure that [Burma] cannot take advantage of such=20
relations to perpetuate or extend the system of forced or compulsory labour=
=20
(=85) and to contribute as far as possible to the implementation of its=20
recommendations; and (ii) report back in due course and at appropriate=20
intervals to the Governing Body=94. In the light of the above, the ICFTU=20
recommended in January 2001 that its affiliates request their governments,=
=20
firstly to inform them fully about their country=92s trade and investment=20
links with Burma, and secondly to consider imposing a ban on investments in=
=20
Burma and trade with Burma, on the grounds that any commercial or economic=
=20
links with Burma in effect today help the junta =93to perpetuate or extend=
=20
the system of forced or compulsory labour=94, in the meaning of the ILO=20
Resolution of June 2000. Much to the ICFTU=92s concern, the response of=20
certain governments to our affiliates=92 request for trade measures to=20
implement the ILO Resolution was to say that such measures stand to=20
contradict WTO rules, and could lead to a trade dispute on behalf of Burma=
=20
that would lead to any such trade measures being found an illegitimate=20
trading practice.

In view of the above, the ICFTU wrote to the WTO to request a clarification=
=20
of the legal situation regarding the implementation of the decision adopted=
=20
by the International Labour Conference in June 2000. In the light of the=20
WTO=92s response and of analysis of the legal issues by various experts, it=
=20
would appear that the negative arguments concerning WTO rules are=20
unfounded. It should be wholly feasible for governments to take trade=20
measures against the government of Burma without fear of ill-effect. This=20
document summarises the case for such measures and explains the WTO=20
provisions that safeguard the right of countries to take such action.

The arguments developed below are consistent with current ILO efforts to=20
ascertain on the ground the extent to which the authorities of Burma have=20
implemented the recommendations of the ILO Commission of Inquiry in the=20
legal, administrative and judicial fields. An ILO High Level Team (HLT)=20
visited the country for this very purpose and its report is to be examined=
=20
by the Governing Body of the ILO. Based in its own investigations, the=20
ICFTU does not expect that session of the Governing Body to alter its=20
earlier calls for the international community to take concrete measures=20
aimed at compelling the junta to cease its forced labour practices.

1. The ILO resolution

The text of the ILO Conference resolution calls on governments, employers=20
and workers to review their relations with Burma, and then take whatever=20
measures are necessary to ensure that Burma cannot take advantage of such=20
relations to perpetuate or extend the system of forced or compulsory labour.

Forced labour in Burma has clearly been continuing on a vast scale since=20
this resolution was passed in June 2000. Ever since that date, the ICFTU=20
has continued to supply the ILO with ample evidence of forced labour being=
=20
used in various areas of the economy, including the production of many=20
goods being sold on world markets, such as agricultural, agro-forestry and=
=20
other products. It has in fact become virtually impossible for any foreign=
=20
firm, company, government or other institution to conduct any trade or=20
other economic activity with or in Burma without providing direct financial=
=20
support to the military junta, mainly its most senior members. Regular=20
reports from Burma make this crystal-clear in the textile, clothing and=20
garments sector, where the military or their relatives and allies directly=
=20
benefit from foreign investments, through joint ownership, lease of land or=
=20
of production premises and other means. At the same time, working=20
conditions in this industry are appalling and various restrictions imposed=
=20
on the workforce (compulsory overtime, often unpaid, and prevention from=20
leaving the employer's premises even when off work) in practice amount to=20
forced labour. Other foreign investments, for instance in the extraction=20
industries, are linked to forced labour through the use of infrastructure=20
which is constructed and/or maintained with forced labour of civilians, or=
=20
the security of which is ensured by Burmese army units supported by=20
forcibly recruited porters and other civilians. While foreign companies=20
actually pay the Burmese army for such services, the forced labourers=20
concerned are rarely compensated, if ever. It should be noted that these=20
practices are identical to those denounced by the ILO Commission of Inquiry=
=20
in 1998 .In other words, any commercial or economic links with Burma in=20
effect today help the junta =93to perpetuate or extend the system of forced=
=20
or compulsory labour=94. Therefore, in order to implement the ILO Conference=
=20
resolution, it is essential that imports from and exports to Burma be=20
restricted. That inescapable meaning of the ILO Conference resolution could=
=20
not be clearer or subject to misinterpretation.


2. GATT Article XX(a): public morals

Article XX(a) of GATT refers to =93measures necessary to protect public=20
morals=94 as an acceptable justification for restrictions on trade. In this=
=20
regard, it is clear that a national choice to refuse to undertake trade=20
with a country employing forced labour is an expression of the public=20
morals of the country taking such measures.

Therefore it would be permissible under WTO rules for a country to employ=20
this provision of the GATT to justify a ban on imports from Burma and/or=20
exports to Burma.


3. GATT Article XX(b): human health

This GATT provision refers to the legitimacy of measures =93necessary to=20
protect human, animal or plant life or health=93. While it has always been=
=20
used in the past in cases of protecting human health in the importing=20
country (for example in the case of food products considered to be=20
dangerous to human health), there is no indication in the GATT text that it=
=20
could not be used to protect human health in the exporting country, in this=
=20
case by preventing the expansion of exports produced to the detriment of=20
the health of the workers concerned.

It should be noted that the ILO Commission of Inquiry has described in=20
details appalling violations of the right to health inflicted upon=20
civilians subjected to forced labour, including deprivation of health care,=
=20
food, water and rest . All of these have continued to be associated with=20
hundreds of cases of forced labour reported by the ICFTU to the ILO since=20
the June 2000 adoption of the ILC Resolution.

It would thus be entirely possible to use GATT Article XX(b) in defence of=
=20
a trade action against Burma.


4. GATT Article XX(e): prison labour

The adoption of measures =93relating to the products of prison labour=94 is=
=20
explicitly provided for under the WTO Agreement (GATT Article XX(e)). The=20
interpretation of =93prison labour=94 has never been clarified in GATT=20
jurisprudence. There is a strong argument that this provision could be=20
interpreted as offering a justification for trade measures against forced=20
labour. That is particularly the case since the WTO Appellate Body has=20
applied the international law principle of evolutionary interpretation when=
=20
determining the scope of the general exceptions recognised by the WTO=20
Agreement in the area of environmental protection. Any WTO panel could well=
=20
decide that if this article were to be drafted nowadays, it would certainly=
=20
cover a wider scope than just prison labour in order to meet its objectives=
=20
and also include forced labour.

Furthermore, ever since the adoption of the ILO resolution in June 2000,=20
the Burmese military have noticeably stepped up their forced labour=20
recruitment drive by indiscriminately arresting civilians under the=20
flimsiest pretexts, sentencing them to heavy prison terms and then=20
incorporating them as porters and human mine-sweepers in frontline units.=20
The main reason for this undoubtedly lies in the fact that prison labour is=
=20
not considered as a violation of ILO Convention n=B0 29 if it has been=20
imposed as a result of a lawful conviction in a proper court of law. This=20
is hardly ever the case in Burma.

In Burma, prison labour and forced labour are virtually the same thing. And=
=20
the legal principle of evolutionary interpretation would apply in the area=
=20
of human rights, allowing GATT Article XX(e) to be used to justify trade=20
measures to stop forced labour in Burma.


5. GATT Article XXI(c): United Nations

This GATT article allows countries to introduce trade restrictions, if that=
=20
is =93in pursuance of its obligations under the United Nations Charter for=
=20
the maintenance of international peace and security=94. While this provision=
=20
has in the past been taken to mean the decisions of the UN General Assembly=
=20
or Security Council, the provisions should equally apply to decisions taken=
=20
by a specialised agency of the United Nations, in this case the ILO.=20
Promoting the respect of human rights in a UN member state, i.e. Burma,=20
would contribute to achieving international peace and security by reducing=
=20
a major source of regional tension arising from the repression of minority=
=20
groups by the Burmese government. In fact, many of these minority groups=20
are among the most exploited by the practice of forced labour and=20
consequently are forced into exile in neighbouring states such as Thailand,=
=20
Bangladesh and India. Cross-border attacks by Burmese troops and militias=20
against these refugee camps further increase destabilisation and=20
lawlessness in the bordering areas. Ending forced labour would eliminate=20
that source of international tension and insecurity.

Full implementation of the ILO Conference resolution, through trade=20
measures, would assist in attaining international peace and security and so=
=20
would come under GATT Article XXI.


6. Burmese junta strategy: avoiding international confrontation

The approach of the SPDC, and before it the SLORC, has consistently sought=
=20
to avoid international discussions of its policy. For example, in the case=
=20
of the European Union=92s GSP investigation of Burma over 1996-97, it was=20
only in the last months of the investigation that the junta finally decided=
=20
to offer limited co-operation, thus seeking to avoid the EU=92s trade=20
sanctions =96 unsuccessfully, in the event. That case is a typical=20
illustration of the junta=92s preference not to encourage any examination of=
=20
its human rights policy.

Therefore, it is highly probable that the junta would not wish to raise=20
international opprobrium of its policies by running a highly visible and=20
controversial trade dispute process at the WTO, which could not fail to=20
attract an unprecedented degree of world attention and result in a further=
=20
report of several hundred pages on the violation of human rights in Burma.


Conclusion: the need for trade sanctions now

All in all, the above arguments demonstrate clearly that there is no=20
down-side to taking trade measures against Burma. Such measures would put=20
enormous pressure on the junta to cease the present worsening level of=20
violations of basic human rights. The legal and the moral cases for action=
=20
are clear. There is no further excuse for governments refraining from=20
implementing trade action against Burma in the shortest possible delay.

JH/JK =96 31.10.2001

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

ICFTU LETTER TO EU TRADE COMMISSIONER

Mr. Pascal Lamy
Commissioner
DG Trade
European Commission
Rue de la Loi, 200
B =96 1049 Brussels

5 November 2001

Dear Commissioner Lamy,

Council of Ministers discussion of Burma (Myanmar)

When the Council undertook its regular six-monthly review of the state of=20
European Union relations with Burma at its meeting on 8 October, it decided=
=20
to maintain the Common Position on Burma, aside from some symbolic gestures=
=20
of goodwill arising from the junta's so-called "secret dialogue" with the=20
NLD Chairperson, Daw Aung San Suu Kyi.

In this regard, we would like to refer to your comments at your discussion=
=20
of 18 September with civil society representatives, at which both the ETUC=
=20
and ICFTU were represented. You surmised that nobody had yet asked detailed=
=20
questions about the compatibility, or otherwise, of measures to apply the=20
International Labour Conference (ILC) decision on Burma and WTO rules.

In fact, over recent months the ICFTU has sought legal clarification, both=
=20
from WTO Director-General Mr. Mike Moore and from independent experts,=20
regarding the possible repercussions of direct actions taken by members of=
=20
both the ILO and WTO with regard to Burma in response to the June 2000 ILC=
=20
Resolution. As a consequence of its research, the ICFTU has produced a=20
short briefing note on the issue, which we attach below. We would=20
appreciate it if you would distribute this letter and the note to the=20
member states.

The short answer to your question is that the ILC resolution is fully=20
compatible with WTO rules. This implies that those members of the ILO who=20
have expressed their commitment to the eradication of forced labour in=20
Burma are free to fulfil their ILO responsibility to act in defence of the=
=20
human rights of the Burmese people.

Almost eighteen months have passed since the groundbreaking ILO resolution=
=20
and not a single government has implemented trade measures based upon it.=20
This displays to us, among other things, the lack of priority human rights=
=20
at work have in the hierarchy of international commitments. If ILO members=
=20
now begin to take effective measures to stop supporting the practice of=20
forced labour in Burma, perhaps this will begin to visibly strengthen the=20
ILO in relation to its fellow multilateral institutions.

On 15 November, the ILO Governing Body is due to discuss the report of the=
=20
visit to Burma of the ILO's High Level Team (HLT). However, this is=20
unlikely to result in any finding that forced labour is now being tackled=20
effectively in Burma, nor any change to the GB's earlier call for the=20
international community to take concrete measures aimed at forcing the=20
junta to cease its forced labour practices.

We consider, therefore, that after the 15 November ILO Governing Body=20
meeting the Council should hold an extraordinary discussion of Burma in=20
order to consider the ILO's findings. The Council should decide to step up=
=20
the EU's measures to stop the violation of human rights in Burma by=20
implementing restrictions on the EU's imports from and exports to that=20
country, and as we have suggested earlier, by imposing a ban on investments=
=20
from the EU in Burma. As explained in the accompanying note, it is only by=
=20
taking such measures that the ILO Resolution of June 2000 can be=20
implemented successfully and this barbaric practice brought to an end.


Yours sincerely,

Bill Jordan
General Secretary ICFTU



Online Burma Library -- www.burmalibrary.org
Thousands of annotated and classified links to full-text documents on=20
Burma/Myanmar

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Content-Transfer-Encoding: quoted-printable

<html>
Below are 3 documents from the ICFTU website. For the original format and
the ICFTU Burma page etc., go to the ICFTU website:
<a href=3D"http://www.icftu.org=A0/"; eudora=3D"autourl">www.icftu.org </a>
(versions: English, Francais, Espanol -- except Bill Jordan's letter to the=
 Commissioner, which is in English)<br><br>
<br>
ICFTU ONLINE...PRESS RELEASE<br><br>
Trade sanctions against Burma fully compatible with WTO rules, says ICFTU,=
 5/11/2001 <br><br>
Brussels November 05, 2001 (ICFTU OnLine): The persistence of forced labour=
 on a large scale in Burma, widely expected to be confirmed next week by the=
 International Labour Organisation (ILO), should prompt all Member States to=
 impose binding trade sanctions on the Burmese regime, says the ICFTU. With=
 the WTO Ministerial Meeting set to open in Qatar on Friday, the ICFTU has=
 released a 5-page report affirming that no legal obstacles stand in the way=
 of such sanctions by virtue of these countries' WTO commitments. The=
 briefing was sent along with a joint letter to EU Trade Commissioner Pascal=
 Lamy, by the European Trade Union Confederation (ETUC) and the=
 ICFTU.<br><br>
In its letter to the EU Trade Representative, the two Brussels-based labour=
 groups re-affirm that the International Labour Conference resolution of=
 June 2000 is fully compatible with WTO rules. It implies that those members=
 of the ILO, the EU included, who have expressed their commitment to the=
 eradication of forced labour in Burma are free to fulfil their ILO=
 responsibility to act in defence of the human rights of the Burmese=
 people.<br><br>
Last year's adoption by the ILO's annual conference of a strongly-worded=
 resolution on Burma opened the way for all Member states, as well as=
 employers organisations and trade unions, to adopt measures aimed at=
 ensuring that any links they might have with Burma would not aid or abet=
 the junta's use of forced labour.<br><br>
On November 15, the letter continues, the ILO Governing Body is due to=
 discuss the report of the visit to Burma of the ILO's High Level Team=
 (HLT). However, this is unlikely to result in any finding that forced=
 labour is now being tackled effectively in Burma.<br><br>
The ETUC and the ICFTU consider therefore, that after the November 15 ILO=
 Governing Body meeting, the EU Council should hold an extraordinary=
 discussion of Burma in order to act on the ILO's findings. The Council=
 should decide to step up the EU's measures to stop the violation of human=
 rights in Burma by implementing restrictions on the EU's imports from and=
 exports to that country and by imposing a ban on investments from the EU in=
 Burma.<br><br>
=93The time has come for decisive economic pressure to be put on the Burmese=
 military in order to convince them that they should desist once and for all=
 from forced labour=94, says Bill Jordan, ICFTU General Secretary. The=
 junta's systematic use of forced labour was assimilated by the 1998 report=
 of an ILO Commission of Inquiry to a crime against humanity. <br><br>
While many governments and corporations have hidden behind an alleged=
 incompatibility of trade sanctions against Burma with WTO rules, the=
 ICFTU's briefing rejects their claims as &quot;legally unfounded and=
 morally wrong&quot;, Jordan said today.<br><br>
The legal briefing addresses six issues, including article XX(a) of the GATT=
 Agreement (General Agreement of Tariffs and Trade) which refers to=
 =93measures necessary to protect public morals=94 as an acceptable=
 justification for restrictions on trade. =93In this regard=94, the briefing=
 continues, =93it is clear that a national choice to refuse to undertake=
 trade with a country employing forced labour is an expression of the public=
 morals of the country taking such measures.=94<br><br>
Additionally, the briefing argues that swift use should be made of GATT=
 Agreement articles relating to human health - XX(b), prison labour - XX(e)=
 and the possibility to use the UN Charter for the maintenance of=
 international peace and security - XXI(c). Such measures, the ICFTU=
 believes, would put enormous pressure on the junta to cease the present=
 worsening level of violations of basic human rights, especially forced=
 labour. <br><br>
=93The legal and the moral cases for action are clear. There is no further=
 excuse for governments refraining from implementing trade action against=
 Burma at the earliest possible time=94, the ICFTU General Secretary=
 concluded.<br><br>
*****************************************<br><br>
INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS (ICFTU)<br><br>
WHY TRADE MEASURES TO IMPLEMENT THE ILO RESOLUTION ON BURMA WOULD BE=
 ENTIRELY COMPATIBLE WITH WTO RULES<br><br>
Introduction<br><br>
The International Labour Conference at its 88th Session (May-June 2000)=
 adopted a resolution on Burma which, inter alia: =93recommend[ed] to the=
 Organisation's constituents as a whole =96 governments, employers and=
 workers =96 that they: (i) review, in the light of the conclusions of the=
 Commission of Inquiry, the relations that they may have with [Burma] and=
 take appropriate measures to ensure that [Burma] cannot take advantage of=
 such relations to perpetuate or extend the system of forced or compulsory=
 labour (=85) 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=94. In the light of the above, the ICFTU=
 recommended in January 2001 that its affiliates request their governments,=
 firstly to inform them fully about their country=92s trade and investment=
 links with Burma, and secondly to consider imposing a ban on investments in=
 Burma and trade with Burma, on the grounds that any commercial or economic=
 links with Burma in effect today help the junta =93to perpetuate or extend=
 the system of forced or compulsory labour=94, in the meaning of the ILO=
 Resolution of June 2000. Much to the ICFTU=92s concern, the response of=
 certain governments to our affiliates=92 request for trade measures to=
 implement the ILO Resolution was to say that such measures stand to=
 contradict WTO rules, and could lead to a trade dispute on behalf of Burma=
 that would lead to any such trade measures being found an illegitimate=
 trading practice.<br><br>
In view of the above, the ICFTU wrote to the WTO to request a clarification=
 of the legal situation regarding the implementation of the decision adopted=
 by the International Labour Conference in June 2000. In the light of the=
 WTO=92s response and of analysis of the legal issues by various experts, it=
 would appear that the negative arguments concerning WTO rules are=
 unfounded. It should be wholly feasible for governments to take trade=
 measures against the government of Burma without fear of ill-effect. This=
 document summarises the case for such measures and explains the WTO=
 provisions that safeguard the right of countries to take such action.=
 <br><br>
The arguments developed below are consistent with current ILO efforts to=
 ascertain on the ground the extent to which the authorities of Burma have=
 implemented the recommendations of the ILO Commission of Inquiry in the=
 legal, administrative and judicial fields. An ILO High Level Team (HLT)=
 visited the country for this very purpose and its report is to be examined=
 by the Governing Body of the ILO. Based in its own investigations, the=
 ICFTU does not expect that session of the Governing Body to alter its=
 earlier calls for the international community to take concrete measures=
 aimed at compelling the junta to cease its forced labour practices.<br><br>
1. The ILO resolution<br><br>
The text of the ILO Conference resolution calls on governments, employers=
 and workers to review their relations with Burma, and then take whatever=
 measures are necessary to ensure that Burma cannot take advantage of such=
 relations to perpetuate or extend the system of forced or compulsory=
 labour.<br><br>
Forced labour in Burma has clearly been continuing on a vast scale since=
 this resolution was passed in June 2000. Ever since that date, the ICFTU=
 has continued to supply the ILO with ample evidence of forced labour being=
 used in various areas of the economy, including the production of many=
 goods being sold on world markets, such as agricultural, agro-forestry and=
 other products. It has in fact become virtually impossible for any foreign=
 firm, company, government or other institution to conduct any trade or=
 other economic activity with or in Burma without providing direct financial=
 support to the military junta, mainly its most senior members. Regular=
 reports from Burma make this crystal-clear in the textile, clothing and=
 garments sector, where the military or their relatives and allies directly=
 benefit from foreign investments, through joint ownership, lease of land or=
 of production premises and other means. At the same time, working=
 conditions in this industry are appalling and various restrictions imposed=
 on the workforce (compulsory overtime, often unpaid, and prevention from=
 leaving the employer's premises even when off work) in practice amount to=
 forced labour. Other foreign investments, for instance in the extraction=
 industries, are linked to forced labour through the use of infrastructure=
 which is constructed and/or maintained with forced labour of civilians, or=
 the security of which is ensured by Burmese army units supported by=
 forcibly recruited porters and other civilians. While foreign companies=
 actually pay the Burmese army for such services, the forced labourers=
 concerned are rarely compensated, if ever. It should be noted that these=
 practices are identical to those denounced by the ILO Commission of Inquiry=
 in 1998 .In other words, any commercial or economic links with Burma in=
 effect today help the junta =93to perpetuate or extend the system of forced=
 or compulsory labour=94. Therefore, in order to implement the ILO=
 Conference resolution, it is essential that imports from and exports to=
 Burma be restricted. That inescapable meaning of the ILO Conference=
 resolution could not be clearer or subject to misinterpretation. <br><br>
<br>
2. GATT Article XX(a): public morals<br><br>
Article XX(a) of GATT refers to =93measures necessary to protect public=
 morals=94 as an acceptable justification for restrictions on trade. In this=
 regard, it is clear that a national choice to refuse to undertake trade=
 with a country employing forced labour is an expression of the public=
 morals of the country taking such measures. <br><br>
Therefore it would be permissible under WTO rules for a country to employ=
 this provision of the GATT to justify a ban on imports from Burma and/or=
 exports to Burma. <br><br>
<br>
3. GATT Article XX(b): human health<br><br>
This GATT provision refers to the legitimacy of measures =93necessary to=
 protect human, animal or plant life or health=93. While it has always been=
 used in the past in cases of protecting human health in the importing=
 country (for example in the case of food products considered to be=
 dangerous to human health), there is no indication in the GATT text that it=
 could not be used to protect human health in the exporting country, in this=
 case by preventing the expansion of exports produced to the detriment of=
 the health of the workers concerned. <br><br>
It should be noted that the ILO Commission of Inquiry has described in=
 details appalling violations of the right to health inflicted upon=
 civilians subjected to forced labour, including deprivation of health care,=
 food, water and rest . All of these have continued to be associated with=
 hundreds of cases of forced labour reported by the ICFTU to the ILO since=
 the June 2000 adoption of the ILC Resolution.<br><br>
It would thus be entirely possible to use GATT Article XX(b) in defence of a=
 trade action against Burma.<br><br>
<br>
4. GATT Article XX(e): prison labour<br><br>
The adoption of measures =93relating to the products of prison labour=94 is=
 explicitly provided for under the WTO Agreement (GATT Article XX(e)). The=
 interpretation of =93prison labour=94 has never been clarified in GATT=
 jurisprudence. There is a strong argument that this provision could be=
 interpreted as offering a justification for trade measures against forced=
 labour. That is particularly the case since the WTO Appellate Body has=
 applied the international law principle of evolutionary interpretation when=
 determining the scope of the general exceptions recognised by the WTO=
 Agreement in the area of environmental protection. Any WTO panel could well=
 decide that if this article were to be drafted nowadays, it would certainly=
 cover a wider scope than just prison labour in order to meet its objectives=
 and also include forced labour. <br><br>
Furthermore, ever since the adoption of the ILO resolution in June 2000, the=
 Burmese military have noticeably stepped up their forced labour recruitment=
 drive by indiscriminately arresting civilians under the flimsiest pretexts,=
 sentencing them to heavy prison terms and then incorporating them as=
 porters and human mine-sweepers in frontline units. The main reason for=
 this undoubtedly lies in the fact that prison labour is not considered as a=
 violation of ILO Convention n=B0 29 if it has been imposed as a result of a=
 lawful conviction in a proper court of law. This is hardly ever the case in=
 Burma.<br><br>
In Burma, prison labour and forced labour are virtually the same thing. And=
 the legal principle of evolutionary interpretation would apply in the area=
 of human rights, allowing GATT Article XX(e) to be used to justify trade=
 measures to stop forced labour in Burma.<br><br>
<br>
5. GATT Article XXI(c): United Nations<br><br>
This GATT article allows countries to introduce trade restrictions, if that=
 is =93in pursuance of its obligations under the United Nations Charter for=
 the maintenance of international peace and security=94. While this=
 provision has in the past been taken to mean the decisions of the UN=
 General Assembly or Security Council, the provisions should equally apply=
 to decisions taken by a specialised agency of the United Nations, in this=
 case the ILO. Promoting the respect of human rights in a UN member state,=
 i.e. Burma, would contribute to achieving international peace and security=
 by reducing a major source of regional tension arising from the repression=
 of minority groups by the Burmese government. In fact, many of these=
 minority groups are among the most exploited by the practice of forced=
 labour and consequently are forced into exile in neighbouring states such=
 as Thailand, Bangladesh and India. Cross-border attacks by Burmese troops=
 and militias against these refugee camps further increase destabilisation=
 and lawlessness in the bordering areas. Ending forced labour would=
 eliminate that source of international tension and insecurity.<br><br>
Full implementation of the ILO Conference resolution, through trade=
 measures, would assist in attaining international peace and security and so=
 would come under GATT Article XXI.<br><br>
<br>
6. Burmese junta strategy: avoiding international confrontation<br><br>
The approach of the SPDC, and before it the SLORC, has consistently sought=
 to avoid international discussions of its policy. For example, in the case=
 of the European Union=92s GSP investigation of Burma over 1996-97, it was=
 only in the last months of the investigation that the junta finally decided=
 to offer limited co-operation, thus seeking to avoid the EU=92s trade=
 sanctions =96 unsuccessfully, in the event. That case is a typical=
 illustration of the junta=92s preference not to encourage any examination=
 of its human rights policy. <br><br>
Therefore, it is highly probable that the junta would not wish to raise=
 international opprobrium of its policies by running a highly visible and=
 controversial trade dispute process at the WTO, which could not fail to=
 attract an unprecedented degree of world attention and result in a further=
 report of several hundred pages on the violation of human rights in=
 Burma.<br><br>
<br>
Conclusion: the need for trade sanctions now<br><br>
All in all, the above arguments demonstrate clearly that there is no=
 down-side to taking trade measures against Burma. Such measures would put=
 enormous pressure on the junta to cease the present worsening level of=
 violations of basic human rights. The legal and the moral cases for action=
 are clear. There is no further excuse for governments refraining from=
 implementing trade action against Burma in the shortest possible delay.=
 <br><br>
JH/JK =96 31.10.2001<br><br>
****************************************<br><br>
ICFTU LETTER TO EU TRADE COMMISSIONER<br><br>
Mr. Pascal Lamy<br>
Commissioner<br>
DG Trade<br>
European Commission<br>
Rue de la Loi, 200<br>
B =96 1049 Brussels<br><br>
5 November 2001<br><br>
Dear Commissioner Lamy,<br><br>
Council of Ministers discussion of Burma (Myanmar)<br><br>
When the Council undertook its regular six-monthly review of the state of=
 European Union relations with Burma at its meeting on 8 October, it decided=
 to maintain the Common Position on Burma, aside from some symbolic gestures=
 of goodwill arising from the junta's so-called &quot;secret dialogue&quot;=
 with the NLD Chairperson, Daw Aung San Suu Kyi.<br><br>
In this regard, we would like to refer to your comments at your discussion=
 of 18 September with civil society representatives, at which both the ETUC=
 and ICFTU were represented. You surmised that nobody had yet asked detailed=
 questions about the compatibility, or otherwise, of measures to apply the=
 International Labour Conference (ILC) decision on Burma and WTO rules.=
 <br><br>
In fact, over recent months the ICFTU has sought legal clarification, both=
 from WTO Director-General Mr. Mike Moore and from independent experts,=
 regarding the possible repercussions of direct actions taken by members of=
 both the ILO and WTO with regard to Burma in response to the June 2000 ILC=
 Resolution. As a consequence of its research, the ICFTU has produced a=
 short briefing note on the issue, which we attach below. We would=
 appreciate it if you would distribute this letter and the note to the=
 member states.<br><br>
The short answer to your question is that the ILC resolution is fully=
 compatible with WTO rules. This implies that those members of the ILO who=
 have expressed their commitment to the eradication of forced labour in=
 Burma are free to fulfil their ILO responsibility to act in defence of the=
 human rights of the Burmese people.<br><br>
Almost eighteen months have passed since the groundbreaking ILO resolution=
 and not a single government has implemented trade measures based upon it.=
 This displays to us, among other things, the lack of priority human rights=
 at work have in the hierarchy of international commitments. If ILO members=
 now begin to take effective measures to stop supporting the practice of=
 forced labour in Burma, perhaps this will begin to visibly strengthen the=
 ILO in relation to its fellow multilateral institutions. <br><br>
On 15 November, the ILO Governing Body is due to discuss the report of the=
 visit to Burma of the ILO's High Level Team (HLT). However, this is=
 unlikely to result in any finding that forced labour is now being tackled=
 effectively in Burma, nor any change to the GB's earlier call for the=
 international community to take concrete measures aimed at forcing the=
 junta to cease its forced labour practices.<br><br>
We consider, therefore, that after the 15 November ILO Governing Body=
 meeting the Council should hold an extraordinary discussion of Burma in=
 order to consider the ILO's findings. The Council should decide to step up=
 the EU's measures to stop the violation of human rights in Burma by=
 implementing restrictions on the EU's imports from and exports to that=
 country, and as we have suggested earlier, by imposing a ban on investments=
 from the EU in Burma. As explained in the accompanying note, it is only by=
 taking such measures that the ILO Resolution of June 2000 can be=
 implemented successfully and this barbaric practice brought to an=
 end.<br><br>
<br>
Yours sincerely,<br><br>
Bill Jordan <br>
General Secretary ICFTU <br><br>
<br>
<x-sigsep><p></x-sigsep>
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