(Part 2) Report of the ILO High-lev

[darnott@xxxxxxxxxxx]

--=====================_15888849==_.ALT
Content-Type: text/plain; charset="iso-8859-1"; format=flowed
Content-Transfer-Encoding: quoted-printable

Report of the ILO High-level team (Part 2) (divided into 2 for easier=20
downloading)

NOTE FROM THE EDITOR OF THIS EMAIL VERSION: PAGE NUMBERS HAVE BEEN OMITTED=
=20
AND THE ORIGINAL FOOTNOTES HAVE BEEN CONVERTED INTO ENDNOTES AND ARE PLACED=
=20
IN SQUARE BRACKETS. THE AUTHORITATIVE TEXT IS ON THE ILO WEBSITE:=20
http://www.ilo.org/public/english/standards/relm/gb/docs/gb282/pdf/gb-4.pdf

*************************************
IV. 2. Findings as regards the impact on the realities of forced labour of=
=20
the steps taken to implement the Orders

54. As the Chairperson of the HLT explained to the Chairman of the SPDC=20
Senior General Than Shwe on 5 October 2001, the HLT members were from the=20
outset very sceptical about the optimistic conclusions which were=20
officially drawn from the absence of reported violations and of any=20
criminal prosecution for such violations. Indeed, the HLT's field trips,=20
and its interviews conducted across the border, amply justified this=20
scepticism.

55. The tentative conclusion that the HLT had reached after completing its=
=20
three weeks of interviews and visits in Myanmar was of a very moderately=20
positive evolution in the situation. Beyond the obvious although uneven=20
effort at disseminating the Orders, the two groups of the HLT shared the=20
view that a certain decrease in the imposition of forced labour had taken=20
place, even though it was difficult to judge precisely to what extent. The=
=20
HLT did, however, have doubts about the sustainability of the process over=
=20
time, and was concerned about the geographical inconsistencies in the=20
progress made, given that in some areas a considerable amount of forced=20
labour appeared to persist. This was particularly associated with the=20
presence of the military, especially in more remote areas.

56. The picture which emerged from discussions and interviews conducted=20
across the border, which concentrated on the case of ethnic groups was even=
=20
more disturbing. In fact, it was not very different from the situation=20
presented in the report of the Commission of Inquiry. Forced labour in most=
=20
of the forms previously identified seemed still to prevail, particularly in=
=20
villages which were close to a military camp. All too often it was=20
accompanied by acts of cruelty.

57. It may seem facile to conclude that an accurate impression of the=20
general situation in the country lies somewhere between these two pictures,=
=20
but that is perhaps the case. One has to bear in mind that the=20
circumstances under which persons came to meet the HLT across the border,=20
and the fact that they came from remote and highly militarized areas where=
=20
insurgencies may be ongoing, means that these interviews show one extreme=20
of the problem, which cannot be extrapolated to the rest of the country. A=
=20
balanced assessment of the trend in forced labour practice needs to reflect=
=20
general patterns, as well as to distinguish between different types of=20
situation. The following two general patterns seem to emerge:

(a) In contrast to the situation reported in 1998 by the Commission of=20
Inquiry, the HLT found no indications of the current use of forced labour=20
on civil infrastructure projects.

(b) In all areas for which the HLT had information it was apparent that=20
there was a strong correlation between the presence of military camps and=20
the practice of forced labour whether or not these troops were engaged in=20
military activities (see paragraphs 61 and 62 below). However, it is=20
important to make the following distinctions:

(c) In many areas, despite continued forced labour as a result of a=20
military presence, there were indications that the situation had improved.=
=20
The sustainability of this improvement is not clear, since it depends on=20
the willingness of local military commanders to continue to rely less on=20
forced labour.

(d) In certain other areas, particularly southern Shan State and the=20
eastern parts of Kayin State near the Thai border, the situation appeared=20
to be particularly serious. This might be partly explained by the greater=20
military presence in these areas, and by their remoteness, but there also=20
appears to be an element of greater repression against these populations as=
=20
a result of the ongoing insurgencies in these areas. Contrary to claims=20
made by the authorities in Yangon, there is no indication that portering in=
=20
these areas has diminished in any noticeable way as a result of any greater=
=20
use of mules or because of any improvement in the road network.

(e) The situation is also particularly serious in northern Rakhine State,=20
which is also a remote area with a large military presence. The Muslim=20
population in this area is disproportionately affected by forced labour; it=
=20
reflects an element of discrimination against this population, which also=20
takes the form, inter alia, of restrictions on movement.

58. There were some indications that the military had recourse to other=20
methods of obtaining labour or services, such as requisitioning vehicles=20
and their drivers. The HLT also met across the border in Thailand with=20
three escaped porters. One claimed to have been arrested on an=20
administrative matter (failure to pay full rice tax) and the other two=20
claimed to have been arbitrarily detained. All were handed over by the=20
police to the military and used as porters, without ever being formally=20
charged or appearing before a judge. Their clothes were taken away by the=20
military and they were made to wear blue convict uniforms.


V. Identification of obstacles to the more effective eradication of forced=
=20
labour

V. 1. The "self-reliance" policy of the army

59. There seems to be little doubt whatever that non-application of the=20
Orders by the army can hardly be attributed to ignorance. As previously=20
noted, the Orders seem to have indeed been the object of wide =96 if uneven=
 =96=20
dissemination at all levels of the military hierarchy. The disturbing=20
evidence seems to be that these Orders are not observed by the military at=
=20
the local level and that there seems to be no accountability in the case of=
=20
breaches. A number of persons met provided relevant information on the=20
state of mind of those responsible at the regional or local level vis-=E0-vi=
s=20
the new Orders. Thus, when a village head came to complain to the local=20
battalion commander, the answer he received was that the Order came from=20
Secretary-1, Lt.-Gen. Khin Nyunt, that Khin Nyunt did not have=20
responsibility for fighting and that therefore this order did not concern=20
them and that if they wanted to complain they could go to him. Others=20
provided similar accounts.

60. Rather than individual indiscipline, this attitude seems to have a lot=
=20
to do with a policy of self-reliance in the context of combating insurgent=
=20
ethnic movements which have, according to some, deep roots in the military=
=20
history of the country. But it also has obvious practical and logistical=20
reasons. The army does not have modern mechanical means and equipment and=20
sometimes not even sufficient resources to feed all its soldiers. There are=
=20
only five Animal Transport Battalions (ATBs) and they can hardly have=20
access to all places of fighting or military presence, and indeed cannot be=
=20
an effective substitute for human porters, for various reasons as explained=
=20
by the military themselves. [24]

61. However, this policy of self-reliance has another quite different=20
dimension which is also relevant to the issue. The army has greatly=20
expanded over the last decade (from 120,000 to over 350,000 soldiers=20
according to military intelligence officers). [25] Ten years ago, it was=20
already supposed to participate in railway construction. However, the size=
=20
of the army has not decreased in proportion with the much advertised=20
progress of pacification. Because of continued budgetary constraints, a=20
policy has developed whereby soldiers who are not fighting continue to=20
receive their pay but have to engage in farming or other productive=20
activities on lands assigned to them. Any surplus above what is needed for=
=20
their subsistence is supposed to be sold on the market at below normal=20
prices to fight against inflation. The HLT had occasion to visit such=20
plantations/ farms. In one case it was given the explanation that because=20
of the prohibition of forced labour, the soldiers were no longer able to=20
exploit fully the area allocated to them as they did not have funds to hire=
=20
villagers at the applicable rate. However, the HLT gathered elsewhere=20
contrary information in this regard according to which soldiers were=20
requiring the labour of villagers and did not pay for it.

62. It may be suspected indeed that this form of reconversion of soldiers=20
into economic activities for which they are not necessarily well qualified=
=20
or prepared is not only doubtful in terms of productive efficiency, but=20
also produces a permanent incentive for soldiers who do not have an=20
inclination for agricultural work to continue to abuse villagers. [26] This=
=20
does not mean, however, that the Orders are not capable of making a=20
difference to the situation of forced labour. It seems on the contrary=20
clear from various testimonies that villagers were less and less prepared=20
to accept the existing situation. Thus, in one specific case they were=20
concretely considering petitioning the authorities on the basis of the=
 Orders.

V. 2. The uncertainty as regards substitute financial/ practical=
 arrangements

63. It will be recalled that the issue of allocating adequate budgetary=20
resources to recruit voluntary wage labour for public activities which have=
=20
been based on forced and unpaid labour was already raised in the=20
recommendations of the Commission of Inquiry and more recently referred to=
=20
in the observation of the Committee of Experts in its 2001 report. [27]

64. On a number of occasions during its field trips and in Yangon, the HLT=
=20
requested details on alternative means of obtaining required labour or=20
services now that forced labour was prohibited. To the extent that any=20
responses were received, they were either inadequate or unclear, and=20
certainly insufficient for the HLT to establish any new developments. As=20
regards portering, some regional commanders explained that since there was=
=20
less fighting, there was a proportional decrease in the need for porters.=20
In any case, they added that the army now had recourse to animal transport=
=20
battalions. Furthermore, the authorities mentioned that bullock carts and=20
tractors were now commonly used. In respect of public works, including=20
road, railway and irrigation projects, the authorities specified that some=
=20
were contracted out to private companies or that soldiers who were no=20
longer involved in fighting were used for such undertakings. In addition,=20
the involvement of certain NGOs and UN agencies was facilitating=20
construction projects in certain areas, in particular on road building.

65. The HLT also inquired about any changes in budgetary arrangements. It=20
believed that there would be no clearer evidence of a change in the forced=
=20
labour situation than evidence of how this had been reflected in the=20
government budget, for example, by significant increases in government=20
budget allocations for labour on public works. During its field visits, the=
=20
HLT was told that before the implementation of the Orders, the budget for=20
public works did not include any allocation for unskilled manual labour: it=
=20
provided only for materials and skilled labour. As a consequence, the local=
=20
authorities had to call for labour contributions from people living along=20
the road or the railway in question. It was explained also to the HLT that=
=20
since August 1999, the practice had drastically changed and there was now a=
=20
clear budget line for compensating both skilled and unskilled labour.=20
Despite numerous requests by the HLT to the authorities on its return to=20
Yangon at the end of its two weeks of field trips, it was unfortunately=20
unable to obtain any confirmation of these explanations. During its last=20
meeting with the Implementation Committee, the HLT was told that such=20
labour costs were difficult to isolate in the budget allocated to=20
construction projects. In any case, it was explained that the budget=20
figures might not reveal the increase expected. First, the 1997 financial=20
crisis had led the Government to adopt an austerity policy. Second, the=20
fact that members of the military and civil servants were now being used=20
did not imply a cost increase since they were already paid by the State.

66. At the time this report was finalized, the HLT had unfortunately not=20
received information allowing it to conclude that the authorities had=20
indeed provided for any real substitute for the cost-free forced labour=20
required by the military or for public works projects.

V. 3. Institutional obstacles

67. Article 25 of Convention No. 29 imposes on States which have ratified=20
this Convention an explicit obligation to ensure that illegal exactions of=
=20
forced labour be punished as a penal offence and that the penalties imposed=
=20
by law be really adequate and be strictly enforced; the Supplementing=20
Order, read together with article 374 of the Penal Code, could satisfy this=
=20
requirement on paper.

68. The problem is, however, that these provisions seem to have little if=20
any impact on the realities of the situation. There may be some cultural=20
reasons for this. As explained by many persons interviewed, the fact of=20
going to the police or to the courts to complain is seen as a "breach in=20
the harmony of the community". This is why in the few reported instances=20
where the victims had the courage to complain they opted for the=20
"administrative route" (township, district or state/division peace and=20
development levels, up to the point where the responsible military=20
authorities could be approached). But it also seems clear that the=20
reluctance to use the procedures specifically provided for by law is due to=
=20
a large extent to the lack of trust in the police and the judicial system,=
=20
in the absence of a constitutional guarantee of the separation of powers=20
and the independence of the judiciary. From the point of view of=20
trustworthy institutions, the existence of an impartial and independent=20
judiciary, composed of members of integrity and independence, assumes great=
=20
importance. Admittedly, this fundamental institutional aspect goes much=20
beyond the mandate of the HLT and would rather seem to fall within the=20
mandate of the Special Rapporteur of the UN Commission on Human Rights on=20
the situation of human rights in Myanmar. One area, however, seems to=20
deserve some attention from the viewpoint and mandate of the ILO. If there=
=20
existed genuine civil society organizations, and in particular strong and=20
independent workers' organizations, as required by Convention No. 87=20
ratified by Myanmar, these could provide individuals affected by forced=20
labour with a framework and collective support which would help them to=20
make the best possible use of whatever remedies are available to defend=20
their recognized rights.


VI. The way forward: How to overcome the obstacles and ensure sustainable=20
progress towards the elimination of forced labour in Myanmar

69. The diversity and magnitude of the obstacles which have been identified=
=20
may at first sight appear discouraging. However, in the light of what has=20
been done in the relatively short period of time since a substantive=20
dialogue was re-established between the authorities and the ILO, the HLT is=
=20
confident that much more can indeed be achieved. As it had the occasion to=
=20
explain to Senior General Than Shwe, the HLT considered that its mandate=20
included offering objective, frank and independent advice about what the=20
ILO and the international community can do to assist the efforts of the=20
authorities to eradicate the problem of forced labour, provided of course=20
that the authorities have a real commitment to do so. It is in this=20
positive spirit that the HLT has tentatively identified three factors=20
which, it considers, have a key role to play: economic modernization,=20
consistent political will of the authorities, and the engagement of the=20
international community.


VI. 1. Economic modernization

70. Myanmar is a potentially rich country by virtue of both its natural=20
resources and its people. Its present economic situation has, however,=20
reached a point where the UN agencies present in the country (UNDP, UNICEF,=
=20
UNFPA, WFP, UNDCP, UNHCR, FAO, WHO and UNAIDS) have made a joint statement=
=20
alerting the international community to what they consider to be a=20
humanitarian crisis. [28] This stand has received the support of the=20
Special Rapporteur of the UN Commission on Human Rights, Professor=20
Pinheiro, who agrees that humanitarian aid is essential and appropriate now=
=20
and that any delay may result in an escalation of problems (the spread of=20
HIV/ AIDS, the degeneration of human capital, increasing illiteracy,=20
depletion of natural resources and a widening of disparities between=20
regions). [29]

71. As regards more specifically the problem of forced labour, it was=20
emphasized repeatedly by international NGOs during their meetings with the=
=20
HLT that this problem could not be isolated from the economic situation and=
=20
the presence of extreme poverty. The relation between these two concerns=20
was also very much at the centre of discussions which the HLT held with the=
=20
international and the local business communities, and others. It was=20
generally held that economic progress and modernization would be key to the=
=20
elimination of forced labour. The business community was, however,=20
extremely worried that the situation was not improving, and on the contrary=
=20
was deteriorating as a result of the measures which had been or could be=20
taken by some countries against Myanmar as well as the fear of prospective=
=20
investors concerning possible consumer reactions. It was explained to the=20
HLT by the international business community that exports in certain=20
industries like the garment industry had been severely affected. They=20
indicated that because of these measures 20 per cent of the 400 garment=20
factories in the country had closed down and a further 40 per cent were=20
producing at below capacity. The tourism potential also remained largely=20
unexploited. This had adversely affected a great number of workers and=20
their families.

72. The HLT cannot but express its deep conviction that, even if it=20
obviously cannot be made a pre-condition, the modernization of the economy=
=20
could indeed be a decisive factor in bringing about a sustainable=20
elimination of forced labour. It could in particular provide viable=20
alternative employment to the surplus military personnel in really=20
productive occupations (rather than in the current ad hoc agricultural or=20
public works activities that they are supposedly currently performing). The=
=20
HLT is at the same time well aware of the fact that this modernization=20
cannot happen without the active involvement of the international=20
community. The international community is confronted with a difficult=20
dilemma. On the one hand, there is the additional unemployment and=20
resulting hardship due to a reluctance to invest, or in some cases to=20
decisions to disinvest, for fear of a tougher stand by the international=20
community or consumer reactions. On the other hand, there is the risk that=
=20
any relaxation of international pressure might remove or at least weaken=20
the willingness of the SPDC to implement the fundamental changes required=20
to ensure respect for the basic rights, freedom and dignity of all peoples=
=20
and ethnic groups in the country.

73. As the HLT was told by some religious leaders, a solution to this=20
dilemma may be based, at least partially, on moral considerations, but the=
=20
strength of such considerations, which is also their limit, is that they=20
have to be applied with consistency. In the realities of international=20
politics they inevitably interact with other factors. Obviously, it is not=
=20
for the HLT to pronounce on the validity of these broader considerations.=20
It seems however legitimate to express at least a hope and a conviction.=20
The hope is that the verdict of history will not come too late for the=20
"lost generation" of young talented people the HLT had the occasion to meet=
=20
during its visit. The conviction is that the solution to this vicious=20
circle may be easier when one considers that the modernization of the=20
economy presupposes a change in mentalities and attitudes as regards forced=
=20
labour, and the understanding that beyond its intrinsic unacceptability it=
=20
is economically inefficient. This change of attitude appears therefore=20
inseparable from a clearer and more coherent political commitment which=20
could in turn trigger a more open attitude from the international community.


VI. 2. Consistent political will

74. The proclaimed political will to eradicate forced labour has been very=
=20
explicitly stated at all levels including by the leadership of the SPDC.=20
Various independent observers and religious leaders have expressed their=20
belief in the sincerity of this commitment. The readiness of the=20
authorities to accept a completely independent and free assessment and to=20
honour their obligations as indicated in paragraph 10 above is in itself=20
evidence of a change of attitude and could be seen as a concrete expression=
=20
of the willingness and commitment of the authorities to progress towards=20
eradicating the practice of forced labour. The problem is, however, that=20
this proclaimed political will appears to be inhibited and sometimes=20
contradicted by an even more fundamental consideration of consolidating the=
=20
unity of the country and safeguarding its territorial integrity against=20
"destructive elements". The logic of this overriding concern may indeed=20
lead to the use of forced labour in the absence of other available means to=
=20
meet this objective, but possibly also as a tool of repression or=20
discrimination against villagers suspected of being sympathetic to=20
insurgent ethnic movements.

75. It is obviously not for the HLT to question the priority accorded by=20
the authorities to safeguarding of the unity of the country, except to=20
recall that the country has, in the very exercise of its sovereign powers,=
=20
undertaken not to use certain means. However, the HLT is convinced that the=
=20
exaction of forced labour in often cruel conditions may not only create=20
irreversible damage to the goodwill between the majority and other ethnic=20
communities, but may also serve to exacerbate the very situation that the=20
authorities are trying to prevent. In short there is absolutely no=20
contradiction between the ultimate objectives of the country and a firm=20
policy of eliminating forced labour. In this light, all authorities,=20
including the military, must be held accountable for their observance of=20
the Orders, with any breach of them being promptly investigated, prosecuted=
=20
and punished, thereby putting an end to the prevailing impunity. A sentence=
=20
befitting the gravity of the offence has long been considered a deterrent=20
to potential offenders, and is furthermore a strict requirement under=20
Article 25 of the Convention.

76. Furthermore, the HLT is convinced that alternatives to forced labour=20
can be found where the will exists. It is difficult to understand for=20
instance why the army continues to use civilians for portering, camp=20
construction, and other work, when many soldiers no longer needed for=20
fighting are occupied in agricultural or other productive activities for=20
which they are not necessarily prepared or qualified.

77. Finally, as indicated above, a more immediate and relatively easy step=
=20
to express the commitment of the authorities could be the strengthening and=
=20
intensification of the publicity given to the Orders, to the whole=20
population and in particular to the military, including the use of all=20
media and all relevant languages. This would help dispel the impression=20
that the publicity given to the Orders may have been prompted by the=20
prospect of the HLT's visit and may not therefore be sustained. Even if the=
=20
obstacles identified in the previous section may limit their impact, there=
=20
is little doubt that general knowledge of the Orders could gradually induce=
=20
a process of real change by helping victims, or their representatives, to=20
become aware of their rights and to assert them. There is even evidence=20
that some elements in the military are ready to implement the Orders.

VI. 3. The engagement of the international community

78. The flow of foreign direct investment (FDI), which seems key to=20
economic development, has been recently in decline. [30] But, for the=20
reasons previously mentioned, it is clear that FDI will not resume unless=20
the appropriate political, economic, financial and legal context is put in=
=20
place. This context presupposes concerted action by relevant international=
=20
and financial institutions in response to a clearer and more coherent=20
commitment of the authorities to transform the country in all relevant=20
respects. To take just one example, it would seem perfectly conceivable=20
that the ILO together with other organizations could be called upon to=20
assist the authorities in the training and reconversion of soldiers towards=
=20
really productive activities rather than in subsistence activities or other=
=20
public work activities, for which they are not necessarily qualified and=20
which they have to accomplish in an inadequate organizational and=20
management framework.

79. Leaving aside broader considerations relating to the ongoing dialogue=20
between the authorities and Daw Aung San Suu Kyi, in which Ambassador=20
Razali Ismail, the Special Envoy of the United Nations Secretary-General,=20
has played a role, it again seems obvious that before engaging in such a=20
concerted plan the international community may wish to have more convincing=
=20
evidence than is offered in this report as regards the real determination=20
of the authorities to eliminate forced labour. In the positive spirit=20
indicated above, the HLT has given consideration to what further steps=20
could be taken by the authorities to provide such guarantees.

80. It seems clear from this report that one of the main handicaps in the=20
enforcement of the Orders is the lack of credibility from which the system=
=20
of redress provided suffers both vis-=E0-vis the victims and the=20
international community. The key question, therefore, is whether and how it=
=20
would be possible to correct this lack of credibility. Leaving aside=20
radical and wholesale changes in the judicial institutions of the country,=
=20
it is possible to conceive of various more immediate ways to bring about=20
positive change. One could be the appointment of a person or body of=20
persons with the required independence and national and international=20
credibility as well as being of unquestioned integrity =96 an ombudsman -to=
=20
whom complaints regarding forced labour could be submitted and who would=20
have a mandate and the necessary means to conduct direct investigations=20
without fear or favour with the required confidence of all parties=20
concerned. This element could be combined with (or substituted by) a form=20
of permanent presence of the ILO in the country. This idea, which is not=20
new, may seem out of proportion with the magnitude of the problems=20
identified above. However, the HLT takes note of the fact that this=20
concrete step was welcomed in many quarters as an important element in=20
progressive improvement in the forced labour situation. It was raised on=20
the occasion of the meeting with Senior General Than Shwe, who indicated=20
that such a development would call for a collegial decision from the SPDC=20
leadership.

81. An agreement on a long-term representation of the ILO in the country,=20
in the light of developments and the findings of the HLT, would indeed now=
=20
seem more than ever critical in establishing the real commitment of the=20
authorities. First, it could assist them in more effective application of=20
the Orders and strengthen the confidence of victims in seeking redress.=20
Second, it could provide assistance to the authorities in the field of=20
training on knowledge and understanding of the Orders and in their efforts=
=20
to eliminate the confusion in the minds of many between forced and donated=
=20
labour. Furthermore, it could help the authorities to respond to the=20
international community regarding allegations, such as the one referred to=
=20
in paragraph 28 above, which may be made against them, thus promoting=20
objective information on forced labour issues. Naturally, the conditions=20
for such a representation should be carefully defined if it is to serve a=20
useful purpose. They should in any case include full freedom of movement=20
and contacts. The experience of the HLT suggests that this is achievable.=20
But if the idea finds favour it would obviously be for the Director-General=
=20
to negotiate with the Government of Myanmar the specific modalities for=20
this representation in such a way that they would be acceptable to the=20
decision-making organs of the ILO.


Conclusions

82. The assessment offered in this report certainly provides no grounds for=
=20
complacency. However, the HLT believes that, notwithstanding the conditions=
=20
under which it had to be carried out, the assessment is accurate, and it=20
hopes that it will prove valuable to the country and the people it came=20
across in carrying out its mandate.

83. There has been an attempt in the past to minimize the scope of the=20
problem in Myanmar by referring to the cultural and religious traditions of=
=20
"donated" labour. Given the nature of the obstacles identified in this=20
report and the explanations provided by one member of the HLT as regards=20
the meaning of Buddhist teachings [31] it seems superfluous to elaborate on=
=20
this aspect here, except to underline one relevant point.

84. It seems that the practice of forced labour, rather than being a=20
cultural phenomenon embedded in religious conceptions, is indeed an=20
historical phenomenon which has plagued all societies at different periods=
=20
of time, depending on their level of economic and administrative=20
development and on the role assumed by the State to curb feudal-type=20
trends. It was present not so long ago in many parts of Europe and the=20
Americas, and it was extensively used elsewhere in the colonial period. But=
=20
it may also take new and different forms in the modern world. [32]

85. The international community has progressively rejected the practice of=
=20
forced and bonded labour, considering it to be an offence to human dignity=
=20
wherever it takes place. It is certainly an impressive sign of the=20
development of moral conscience that forced labour, which was not=20
considered worth a specific reference in the 1919 ILO Constitution, is now=
=20
recognized as a violation of fundamental workers' rights in the 1998 ILO=20
Declaration on Fundamental Principles and Rights at Work, as well as of a=20
peremptory norm in general international law.

86. The elimination of forced labour thus represents not only the discharge=
=20
of a moral and legal obligation for Myanmar, but also offers an historic=20
opportunity for this country to accomplish its modernization, including=20
commitment to the Rule of Law which Senior General Than Shwe expressly=20
pledged. [33] Rising to this challenge implies dilemmas and difficult=20
decisions. When confronted with these dilemmas the temptation is often to=20
seek refuge in the idealization of the past or the assumption that the=20
present could be extended indefinitely into the future. The HLT is=20
confident that there are many in the leadership of the country who have=20
fully grasped the historical dimension of the challenge and the need to=20
respond to it. The basic conviction that the HLT expressed to the=20
leadership of the country at the close of the three-week visit to the=20
country remains unshaken: its faith in the capacity of the country and its=
=20
people to occupy the place they deserve in the international community, and=
=20
its hope that the international community, thanks in part to the patient=20
and consistent efforts of the ILO, will be of assistance in the process.

87. The report was discussed and finalized by the HLT in Geneva.

29 October 2001.


Sir Ninian Stephen, Chairperson
Ms. Nieves Roldan-Confesor, Vice-Chairperson
Mr. K. A. Parinda Ranasinghe
Mr. Jerzy Makarczyk

* * *

The HLT cannot end its report without expressing its deep gratitude to all=
=20
those who helped in many different ways in fulfilling its difficult and=20
important task as efficiently as possible, over a period of more than one=20
month. It wishes to thank in particular its secretariat, Mr. Francis=20
Maupain, Mr. Muneto Ozaki, Mr. Rueben Dudley, Ms. Anne-Marie La Rosa, Mr.=20
Richard Horsey, Ms. Marie-Anne Plantard and Ms. Tracy Murphy, for their=20
professionalism, dedication and support. It also wishes to express its=20
gratitude to all the members of the ILO Mission Coordination Committee and=
=20
to the facilitator Mr. Leon de Riedmatten of the Centre for Humanitarian=20
Dialogue who helped in establishing the programme and made remarkable=20
arrangements to fulfil it; to the United Nations Resident Coordinator, Mr.=
=20
Coeur-Bizot; to Ms. Minako Nakatani and Mr. Khin Maung Wynn of the UNDP, as=
=20
well as all other representatives of the United Nations Organizations and=20
the ICRC in Yangon and in the field whose advice, interest and logistical=20
support were of great assistance; and to the four interpreters who=20
accompanied the team with great dedication over long and tiring journeys,=20
meetings and interviews. The HLT also wishes to express its sincere thanks=
=20
to all the NGOs and individuals which contributed to its programme of=20
meetings and interviews across the Thai border during the week from 7 to 11=
=20
October.

____________________________________________________

END NOTES (FOOTNOTES IN ORIGINAL]


[24] Some of the reasons mentioned were that there were limits on the=20
mobility of mules, particularly in the monsoon season, and that mules were=
=20
noisy and could therefore not be used in front-line areas.

[25] The often-cited figure of 500,000 troops refers to the armed forces as=
=20
a whole, including the other armed services.

[26] This system does not apply only to the army. In order to compensate=20
for their low salaries, members of the police or other administrative=20
bodies (and even judges) receive some land allocations which enable them to=
=20
be more self-sufficient in terms of food. See also para. 78 and its=
 footnote.

[27] See Appendix V, para. 18.

[28] In this context, they pointed out that the total annual ODA provided=20
to Myanmar is US$ 1 per capita compared with US$ 35 for Cambodia and US$ 68=
=20
for the Lao People's Democratic Republic (1997 figures).

[29] Situation of human rights in Myanmar: Interim report of Paulo Sergio=20
Pinheiro, Special Rapporteur of the Commission on Human Rights on the=20
situation of human rights in Myanmar, UNGA, Off. Doc. A/ 56/ 312 (20 August=
=20
2001), paras. 70-74.

[30] The HLT received the following information from various sources:=20
Myanmar has a labour force of just under 20 million persons (1997-98=20
estimates), of which 19.3 million persons are estimated to have been in=20
work (excluding unpaid family workers). Agriculture is by far the largest=20
employer accounting for 63 per cent of the total. Due to the prominence of=
=20
agriculture, most employment is in the private sector, with the public=20
sector only accounting for about 8 per cent of total employment. Wages in=20
the public sector have been in continuous decline, though payments in kind=
=20
have helped mitigate the effects of inflation. In April 2000, there was a=20
fivefold increase in the nominal wages of civil servants, taking them back=
=20
in real terms to where they were in about 1990. While the agriculture=20
sector has benefited from reform, its enormous potential has still not been=
=20
fully exploited. Agriculture development is still affected by distortions=20
in the land market, inadequate investment in irrigation, and so on. More=20
generally, poor infrastructure holds back the development of most sectors=20
of the economy and there is under-investment in key utilities. The public=20
sector continues to run large deficits, in the region of 5 per cent or more=
=20
of GDP. Tax revenue is extremely low at just over 2 per cent of GDP.=20
State-owned enterprises are generally inefficient and continue to run at a=
=20
loss. This acts as a drain on scarce public sector resources. Public=20
expenditure on crucial health and education services is below 1 per cent of=
=20
GDP. Largely as a consequence of public sector deficits, inflation has=20
averaged close to 30 per cent per annum during the period from 1995-2000.=20
Myanmar is in arrears on the servicing of its debt to the Asian Development=
=20
Bank, to the World Bank and to a variety of bilateral creditors. Most=20
official capital flows and other forms of international assistance to=20
Myanmar were cut off in 1988. Although foreign direct equity investment,=20
trade credits and other private transfers were comparatively buoyant=20
through to 1997, they have since suffered both as a consequence of the=20
Asian crisis and as a result of sanctions. There are growing foreign=20
exchange shortages, and it is now estimated that Myanmar has sufficient=20
international reserves to cover only about one month of imports.

[31] As explained by this member of the HLT, there exists a clear and=20
unmistakable distinction between the concepts of forced labour and "donated=
=20
labour". "Donated labour" is, as is inherent in an act of donation, first=20
and foremost an act done by a person of their own free will and out of the=
=20
goodness of their heart without an expectation of any reward. It is=20
untainted by any element of force or compulsion. The Buddhist perception of=
=20
"giving" (Dhana) is that it is a wholesome act. It is the responsibility of=
=20
the laity to supply the fourfold needs of the Sangha (food, clothing,=20
shelter and medicine). It is also considered to operate towards the=20
diminution and final eradication of greed, which is accepted as being one=20
of the three root causes of unwholesome acts.

[32] See in this regard: "Stopping Forced Labour", Global Report under the=
=20
Follow-up to the 1998 ILO Declaration on Fundamental Principles and Rights=
=20
at Work, 2001.

[33] See Appendix IX, para.

END OF THE REPORT. SEE ALSO THE APPENDICES.


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

--=====================_15888849==_.ALT
Content-Type: text/html; charset="iso-8859-1"
Content-Transfer-Encoding: quoted-printable

<html>
Report of the ILO High-level team (Part 2) (divided into 2 for easier
downloading)<br><br>
NOTE FROM THE EDITOR OF THIS EMAIL VERSION: PAGE NUMBERS HAVE BEEN
OMITTED AND THE ORIGINAL FOOTNOTES HAVE BEEN CONVERTED INTO ENDNOTES AND
ARE PLACED IN SQUARE BRACKETS. THE AUTHORITATIVE TEXT IS ON THE ILO
WEBSITE:
<a=
 href=3D"http://www.ilo.org/public/english/standards/relm/gb/docs/gb282/pdf/=
gb-4.pdf"=
 eudora=3D"autourl">http://www.ilo.org/public/english/standards/relm/gb/docs=
/gb282/pdf/gb-4.pdf</a><br><br>
*************************************<br>
IV. 2. Findings as regards the impact on the realities of forced labour
of the steps taken to implement the Orders <br><br>
54. As the Chairperson of the HLT explained to the Chairman of the SPDC
Senior General Than Shwe on 5 October 2001, the HLT members were from the
outset very sceptical about the optimistic conclusions which were
officially drawn from the absence of reported violations and of any
criminal prosecution for such violations. Indeed, the HLT's field trips,
and its interviews conducted across the border, amply justified this
scepticism. <br><br>
55. The tentative conclusion that the HLT had reached after completing
its three weeks of interviews and visits in Myanmar was of a very
moderately positive evolution in the situation. Beyond the obvious
although uneven effort at disseminating the Orders, the two groups of the
HLT shared the view that a certain decrease in the imposition of forced
labour had taken place, even though it was difficult to judge precisely
to what extent. The HLT did, however, have doubts about the
sustainability of the process over time, and was concerned about the
geographical inconsistencies in the progress made, given that in some
areas a considerable amount of forced labour appeared to persist. This
was particularly associated with the presence of the military, especially
in more remote areas. <br><br>
56. The picture which emerged from discussions and interviews conducted
across the border, which concentrated on the case of ethnic groups was
even more disturbing. In fact, it was not very different from the
situation presented in the report of the Commission of Inquiry. Forced
labour in most of the forms previously identified seemed still to
prevail, particularly in villages which were close to a military camp.
All too often it was accompanied by acts of cruelty. <br><br>
57. It may seem facile to conclude that an accurate impression of the
general situation in the country lies somewhere between these two
pictures, but that is perhaps the case. One has to bear in mind that the
circumstances under which persons came to meet the HLT across the border,
and the fact that they came from remote and highly militarized areas
where insurgencies may be ongoing, means that these interviews show one
extreme of the problem, which cannot be extrapolated to the rest of the
country. A balanced assessment of the trend in forced labour practice
needs to reflect general patterns, as well as to distinguish between
different types of situation. The following two general patterns seem to
emerge: <br><br>
(a) In contrast to the situation reported in 1998 by the Commission of
Inquiry, the HLT found no indications of the current use of forced labour
on civil infrastructure projects. <br><br>
(b) In all areas for which the HLT had information it was apparent that
there was a strong correlation between the presence of military camps and
the practice of forced labour whether or not these troops were engaged in
military activities (see paragraphs 61 and 62 below). However, it is
important to make the following distinctions: <br><br>
(c) In many areas, despite continued forced labour as a result of a
military presence, there were indications that the situation had
improved. The sustainability of this improvement is not clear, since it
depends on the willingness of local military commanders to continue to
rely less on forced labour. <br><br>
(d) In certain other areas, particularly southern Shan State and the
eastern parts of Kayin State near the Thai border, the situation appeared
to be particularly serious. This might be partly explained by the greater
military presence in these areas, and by their remoteness, but there also
appears to be an element of greater repression against these populations
as a result of the ongoing insurgencies in these areas. Contrary to
claims made by the authorities in Yangon, there is no indication that
portering in these areas has diminished in any noticeable way as a result
of any greater use of mules or because of any improvement in the road
network. <br><br>
(e) The situation is also particularly serious in northern Rakhine State,
which is also a remote area with a large military presence. The Muslim
population in this area is disproportionately affected by forced labour;
it reflects an element of discrimination against this population, which
also takes the form, inter alia, of restrictions on movement. <br><br>
58. There were some indications that the military had recourse to other
methods of obtaining labour or services, such as requisitioning vehicles
and their drivers. The HLT also met across the border in Thailand with
three escaped porters. One claimed to have been arrested on an
administrative matter (failure to pay full rice tax) and the other two
claimed to have been arbitrarily detained. All were handed over by the
police to the military and used as porters, without ever being formally
charged or appearing before a judge. Their clothes were taken away by the
military and they were made to wear blue convict uniforms. <br><br>
<br>
V. Identification of obstacles to the more effective eradication of
forced labour <br><br>
V. 1. The &quot;self-reliance&quot; policy of the army <br><br>
59. There seems to be little doubt whatever that non-application of the
Orders by the army can hardly be attributed to ignorance. As previously
noted, the Orders seem to have indeed been the object of wide =96 if uneven
=96 dissemination at all levels of the military hierarchy. The disturbing
evidence seems to be that these Orders are not observed by the military
at the local level and that there seems to be no accountability in the
case of breaches. A number of persons met provided relevant information
on the state of mind of those responsible at the regional or local level
vis-=E0-vis the new Orders. Thus, when a village head came to complain to
the local battalion commander, the answer he received was that the Order
came from Secretary-1, Lt.-Gen. Khin Nyunt, that Khin Nyunt did not have
responsibility for fighting and that therefore this order did not concern
them and that if they wanted to complain they could go to him. Others
provided similar accounts. <br><br>
60. Rather than individual indiscipline, this attitude seems to have a
lot to do with a policy of self-reliance in the context of combating
insurgent ethnic movements which have, according to some, deep roots in
the military history of the country. But it also has obvious practical
and logistical reasons. The army does not have modern mechanical means
and equipment and sometimes not even sufficient resources to feed all its
soldiers. There are only five Animal Transport Battalions (ATBs) and they
can hardly have access to all places of fighting or military presence,
and indeed cannot be an effective substitute for human porters, for
various reasons as explained by the military themselves. [24] <br><br>
61. However, this policy of self-reliance has another quite different
dimension which is also relevant to the issue. The army has greatly
expanded over the last decade (from 120,000 to over 350,000 soldiers
according to military intelligence officers). [25] Ten years ago, it was
already supposed to participate in railway construction. However, the
size of the army has not decreased in proportion with the much advertised
progress of pacification. Because of continued budgetary constraints, a
policy has developed whereby soldiers who are not fighting continue to
receive their pay but have to engage in farming or other productive
activities on lands assigned to them. Any surplus above what is needed
for their subsistence is supposed to be sold on the market at below
normal prices to fight against inflation. The HLT had occasion to visit
such plantations/ farms. In one case it was given the explanation that
because of the prohibition of forced labour, the soldiers were no longer
able to exploit fully the area allocated to them as they did not have
funds to hire villagers at the applicable rate. However, the HLT gathered
elsewhere contrary information in this regard according to which soldiers
were requiring the labour of villagers and did not pay for it. <br><br>
62. It may be suspected indeed that this form of reconversion of soldiers
into economic activities for which they are not necessarily well
qualified or prepared is not only doubtful in terms of productive
efficiency, but also produces a permanent incentive for soldiers who do
not have an inclination for agricultural work to continue to abuse
villagers. [26] This does not mean, however, that the Orders are not
capable of making a difference to the situation of forced labour. It
seems on the contrary clear from various testimonies that villagers were
less and less prepared to accept the existing situation. Thus, in one
specific case they were concretely considering petitioning the
authorities on the basis of the Orders. <br><br>
V. 2. The uncertainty as regards substitute financial/ practical
arrangements <br><br>
63. It will be recalled that the issue of allocating adequate budgetary
resources to recruit voluntary wage labour for public activities which
have been based on forced and unpaid labour was already raised in the
recommendations of the Commission of Inquiry and more recently referred
to in the observation of the Committee of Experts in its 2001 report.
[27] <br><br>
64. On a number of occasions during its field trips and in Yangon, the
HLT requested details on alternative means of obtaining required labour
or services now that forced labour was prohibited. To the extent that any
responses were received, they were either inadequate or unclear, and
certainly insufficient for the HLT to establish any new developments. As
regards portering, some regional commanders explained that since there
was less fighting, there was a proportional decrease in the need for
porters. In any case, they added that the army now had recourse to animal
transport battalions. Furthermore, the authorities mentioned that bullock
carts and tractors were now commonly used. In respect of public works,
including road, railway and irrigation projects, the authorities
specified that some were contracted out to private companies or that
soldiers who were no longer involved in fighting were used for such
undertakings. In addition, the involvement of certain NGOs and UN
agencies was facilitating construction projects in certain areas, in
particular on road building. <br><br>
65. The HLT also inquired about any changes in budgetary arrangements. It
believed that there would be no clearer evidence of a change in the
forced labour situation than evidence of how this had been reflected in
the government budget, for example, by significant increases in
government budget allocations for labour on public works. During its
field visits, the HLT was told that before the implementation of the
Orders, the budget for public works did not include any allocation for
unskilled manual labour: it provided only for materials and skilled
labour. As a consequence, the local authorities had to call for labour
contributions from people living along the road or the railway in
question. It was explained also to the HLT that since August 1999, the
practice had drastically changed and there was now a clear budget line
for compensating both skilled and unskilled labour. Despite numerous
requests by the HLT to the authorities on its return to Yangon at the end
of its two weeks of field trips, it was unfortunately unable to obtain
any confirmation of these explanations. During its last meeting with the
Implementation Committee, the HLT was told that such labour costs were
difficult to isolate in the budget allocated to construction projects. In
any case, it was explained that the budget figures might not reveal the
increase expected. First, the 1997 financial crisis had led the
Government to adopt an austerity policy. Second, the fact that members of
the military and civil servants were now being used did not imply a cost
increase since they were already paid by the State. <br><br>
66. At the time this report was finalized, the HLT had unfortunately not
received information allowing it to conclude that the authorities had
indeed provided for any real substitute for the cost-free forced labour
required by the military or for public works projects. <br><br>
V. 3. Institutional obstacles <br><br>
67. Article 25 of Convention No. 29 imposes on States which have ratified
this Convention an explicit obligation to ensure that illegal exactions
of forced labour be punished as a penal offence and that the penalties
imposed by law be really adequate and be strictly enforced; the
Supplementing Order, read together with article 374 of the Penal Code,
could satisfy this requirement on paper. <br><br>
68. The problem is, however, that these provisions seem to have little if
any impact on the realities of the situation. There may be some cultural
reasons for this. As explained by many persons interviewed, the fact of
going to the police or to the courts to complain is seen as a
&quot;breach in the harmony of the community&quot;. This is why in the
few reported instances where the victims had the courage to complain they
opted for the &quot;administrative route&quot; (township, district or
state/division peace and development levels, up to the point where the
responsible military authorities could be approached). But it also seems
clear that the reluctance to use the procedures specifically provided for
by law is due to a large extent to the lack of trust in the police and
the judicial system, in the absence of a constitutional guarantee of the
separation of powers and the independence of the judiciary. From the
point of view of trustworthy institutions, the existence of an impartial
and independent judiciary, composed of members of integrity and
independence, assumes great importance. Admittedly, this fundamental
institutional aspect goes much beyond the mandate of the HLT and would
rather seem to fall within the mandate of the Special Rapporteur of the
UN Commission on Human Rights on the situation of human rights in
Myanmar. One area, however, seems to deserve some attention from the
viewpoint and mandate of the ILO. If there existed genuine civil society
organizations, and in particular strong and independent workers'
organizations, as required by Convention No. 87 ratified by Myanmar,
these could provide individuals affected by forced labour with a
framework and collective support which would help them to make the best
possible use of whatever remedies are available to defend their
recognized rights. <br><br>
<br>
VI. The way forward: How to overcome the obstacles and ensure sustainable
progress towards the elimination of forced labour in Myanmar <br><br>
69. The diversity and magnitude of the obstacles which have been
identified may at first sight appear discouraging. However, in the light
of what has been done in the relatively short period of time since a
substantive dialogue was re-established between the authorities and the
ILO, the HLT is confident that much more can indeed be achieved. As it
had the occasion to explain to Senior General Than Shwe, the HLT
considered that its mandate included offering objective, frank and
independent advice about what the ILO and the international community can
do to assist the efforts of the authorities to eradicate the problem of
forced labour, provided of course that the authorities have a real
commitment to do so. It is in this positive spirit that the HLT has
tentatively identified three factors which, it considers, have a key role
to play: economic modernization, consistent political will of the
authorities, and the engagement of the international community.=20
<br><br>
<br>
VI. 1. Economic modernization <br><br>
70. Myanmar is a potentially rich country by virtue of both its natural
resources and its people. Its present economic situation has, however,
reached a point where the UN agencies present in the country (UNDP,
UNICEF, UNFPA, WFP, UNDCP, UNHCR, FAO, WHO and UNAIDS) have made a joint
statement alerting the international community to what they consider to
be a humanitarian crisis. [28] This stand has received the support of the
Special Rapporteur of the UN Commission on Human Rights, Professor
Pinheiro, who agrees that humanitarian aid is essential and appropriate
now and that any delay may result in an escalation of problems (the
spread of HIV/ AIDS, the degeneration of human capital, increasing
illiteracy, depletion of natural resources and a widening of disparities
between regions). [29]<br><br>
71. As regards more specifically the problem of forced labour, it was
emphasized repeatedly by international NGOs during their meetings with
the HLT that this problem could not be isolated from the economic
situation and the presence of extreme poverty. The relation between these
two concerns was also very much at the centre of discussions which the
HLT held with the international and the local business communities, and
others. It was generally held that economic progress and modernization
would be key to the elimination of forced labour. The business community
was, however, extremely worried that the situation was not improving, and
on the contrary was deteriorating as a result of the measures which had
been or could be taken by some countries against Myanmar as well as the
fear of prospective investors concerning possible consumer reactions. It
was explained to the HLT by the international business community that
exports in certain industries like the garment industry had been severely
affected. They indicated that because of these measures 20 per cent of
the 400 garment factories in the country had closed down and a further 40
per cent were producing at below capacity. The tourism potential also
remained largely unexploited. This had adversely affected a great number
of workers and their families. <br><br>
72. The HLT cannot but express its deep conviction that, even if it
obviously cannot be made a pre-condition, the modernization of the
economy could indeed be a decisive factor in bringing about a sustainable
elimination of forced labour. It could in particular provide viable
alternative employment to the surplus military personnel in really
productive occupations (rather than in the current ad hoc agricultural or
public works activities that they are supposedly currently performing).
The HLT is at the same time well aware of the fact that this
modernization cannot happen without the active involvement of the
international community. The international community is confronted with a
difficult dilemma. On the one hand, there is the additional unemployment
and resulting hardship due to a reluctance to invest, or in some cases to
decisions to disinvest, for fear of a tougher stand by the international
community or consumer reactions. On the other hand, there is the risk
that any relaxation of international pressure might remove or at least
weaken the willingness of the SPDC to implement the fundamental changes
required to ensure respect for the basic rights, freedom and dignity of
all peoples and ethnic groups in the country. <br><br>
73. As the HLT was told by some religious leaders, a solution to this
dilemma may be based, at least partially, on moral considerations, but
the strength of such considerations, which is also their limit, is that
they have to be applied with consistency. In the realities of
international politics they inevitably interact with other factors.
Obviously, it is not for the HLT to pronounce on the validity of these
broader considerations. It seems however legitimate to express at least a
hope and a conviction. The hope is that the verdict of history will not
come too late for the &quot;lost generation&quot; of young talented
people the HLT had the occasion to meet during its visit. The conviction
is that the solution to this vicious circle may be easier when one
considers that the modernization of the economy presupposes a change in
mentalities and attitudes as regards forced labour, and the understanding
that beyond its intrinsic unacceptability it is economically inefficient.
This change of attitude appears therefore inseparable from a clearer and
more coherent political commitment which could in turn trigger a more
open attitude from the international community. <br><br>
<br>
VI. 2. Consistent political will <br><br>
74. The proclaimed political will to eradicate forced labour has been
very explicitly stated at all levels including by the leadership of the
SPDC. Various independent observers and religious leaders have expressed
their belief in the sincerity of this commitment. The readiness of the
authorities to accept a completely independent and free assessment and to
honour their obligations as indicated in paragraph 10 above is in itself
evidence of a change of attitude and could be seen as a concrete
expression of the willingness and commitment of the authorities to
progress towards eradicating the practice of forced labour. The problem
is, however, that this proclaimed political will appears to be inhibited
and sometimes contradicted by an even more fundamental consideration of
consolidating the unity of the country and safeguarding its territorial
integrity against &quot;destructive elements&quot;. The logic of this
overriding concern may indeed lead to the use of forced labour in the
absence of other available means to meet this objective, but possibly
also as a tool of repression or discrimination against villagers
suspected of being sympathetic to insurgent ethnic movements. <br><br>
75. It is obviously not for the HLT to question the priority accorded by
the authorities to safeguarding of the unity of the country, except to
recall that the country has, in the very exercise of its sovereign
powers, undertaken not to use certain means. However, the HLT is
convinced that the exaction of forced labour in often cruel conditions
may not only create irreversible damage to the goodwill between the
majority and other ethnic communities, but may also serve to exacerbate
the very situation that the authorities are trying to prevent. In short
there is absolutely no contradiction between the ultimate objectives of
the country and a firm policy of eliminating forced labour. In this
light, all authorities, including the military, must be held accountable
for their observance of the Orders, with any breach of them being
promptly investigated, prosecuted and punished, thereby putting an end to
the prevailing impunity. A sentence befitting the gravity of the offence
has long been considered a deterrent to potential offenders, and is
furthermore a strict requirement under Article 25 of the Convention.
<br><br>
76. Furthermore, the HLT is convinced that alternatives to forced labour
can be found where the will exists. It is difficult to understand for
instance why the army continues to use civilians for portering, camp
construction, and other work, when many soldiers no longer needed for
fighting are occupied in agricultural or other productive activities for
which they are not necessarily prepared or qualified. <br><br>
77. Finally, as indicated above, a more immediate and relatively easy
step to express the commitment of the authorities could be the
strengthening and intensification of the publicity given to the Orders,
to the whole population and in particular to the military, including the
use of all media and all relevant languages. This would help dispel the
impression that the publicity given to the Orders may have been prompted
by the prospect of the HLT's visit and may not therefore be sustained.
Even if the obstacles identified in the previous section may limit their
impact, there is little doubt that general knowledge of the Orders could
gradually induce a process of real change by helping victims, or their
representatives, to become aware of their rights and to assert them.
There is even evidence that some elements in the military are ready to
implement the Orders.<br><br>
VI. 3. The engagement of the international community <br><br>
78. The flow of foreign direct investment (FDI), which seems key to
economic development, has been recently in decline. [30] But, for the
reasons previously mentioned, it is clear that FDI will not resume unless
the appropriate political, economic, financial and legal context is put
in place. This context presupposes concerted action by relevant
international and financial institutions in response to a clearer and
more coherent commitment of the authorities to transform the country in
all relevant respects. To take just one example, it would seem perfectly
conceivable that the ILO together with other organizations could be
called upon to assist the authorities in the training and reconversion of
soldiers towards really productive activities rather than in subsistence
activities or other public work activities, for which they are not
necessarily qualified and which they have to accomplish in an inadequate
organizational and management framework. <br><br>
79. Leaving aside broader considerations relating to the ongoing dialogue
between the authorities and Daw Aung San Suu Kyi, in which Ambassador
Razali Ismail, the Special Envoy of the United Nations Secretary-General,
has played a role, it again seems obvious that before engaging in such a
concerted plan the international community may wish to have more
convincing evidence than is offered in this report as regards the real
determination of the authorities to eliminate forced labour. In the
positive spirit indicated above, the HLT has given consideration to what
further steps could be taken by the authorities to provide such
guarantees. <br><br>
80. It seems clear from this report that one of the main handicaps in the
enforcement of the Orders is the lack of credibility from which the
system of redress provided suffers both vis-=E0-vis the victims and the
international community. The key question, therefore, is whether and how
it would be possible to correct this lack of credibility. Leaving aside
radical and wholesale changes in the judicial institutions of the
country, it is possible to conceive of various more immediate ways to
bring about positive change. One could be the appointment of a person or
body of persons with the required independence and national and
international credibility as well as being of unquestioned integrity =96 an
ombudsman -to whom complaints regarding forced labour could be submitted
and who would have a mandate and the necessary means to conduct direct
investigations without fear or favour with the required confidence of all
parties concerned. This element could be combined with (or substituted
by) a form of permanent presence of the ILO in the country. This idea,
which is not new, may seem out of proportion with the magnitude of the
problems identified above. However, the HLT takes note of the fact that
this concrete step was welcomed in many quarters as an important element
in progressive improvement in the forced labour situation. It was raised
on the occasion of the meeting with Senior General Than Shwe, who
indicated that such a development would call for a collegial decision
from the SPDC leadership. <br><br>
81. An agreement on a long-term representation of the ILO in the country,
in the light of developments and the findings of the HLT, would indeed
now seem more than ever critical in establishing the real commitment of
the authorities. First, it could assist them in more effective
application of the Orders and strengthen the confidence of victims in
seeking redress. Second, it could provide assistance to the authorities
in the field of training on knowledge and understanding of the Orders and
in their efforts to eliminate the confusion in the minds of many between
forced and donated labour. Furthermore, it could help the authorities to
respond to the international community regarding allegations, such as the
one referred to in paragraph 28 above, which may be made against them,
thus promoting objective information on forced labour issues. Naturally,
the conditions for such a representation should be carefully defined if
it is to serve a useful purpose. They should in any case include full
freedom of movement and contacts. The experience of the HLT suggests that
this is achievable. But if the idea finds favour it would obviously be
for the Director-General to negotiate with the Government of Myanmar the
specific modalities for this representation in such a way that they would
be acceptable to the decision-making organs of the ILO. <br><br>
<br>
Conclusions <br><br>
82. The assessment offered in this report certainly provides no grounds
for complacency. However, the HLT believes that, notwithstanding the
conditions under which it had to be carried out, the assessment is
accurate, and it hopes that it will prove valuable to the country and the
people it came across in carrying out its mandate. <br><br>
83. There has been an attempt in the past to minimize the scope of the
problem in Myanmar by referring to the cultural and religious traditions
of &quot;donated&quot; labour. Given the nature of the obstacles
identified in this report and the explanations provided by one member of
the HLT as regards the meaning of Buddhist teachings [31] it seems
superfluous to elaborate on this aspect here, except to underline one
relevant point. <br><br>
84. It seems that the practice of forced labour, rather than being a
cultural phenomenon embedded in religious conceptions, is indeed an
historical phenomenon which has plagued all societies at different
periods of time, depending on their level of economic and administrative
development and on the role assumed by the State to curb feudal-type
trends. It was present not so long ago in many parts of Europe and the
Americas, and it was extensively used elsewhere in the colonial period.
But it may also take new and different forms in the modern world. [32]
<br><br>
85. The international community has progressively rejected the practice
of forced and bonded labour, considering it to be an offence to human
dignity wherever it takes place. It is certainly an impressive sign of
the development of moral conscience that forced labour, which was not
considered worth a specific reference in the 1919 ILO Constitution, is
now recognized as a violation of fundamental workers' rights in the 1998
ILO Declaration on Fundamental Principles and Rights at Work, as well as
of a peremptory norm in general international law. <br><br>
86. The elimination of forced labour thus represents not only the
discharge of a moral and legal obligation for Myanmar, but also offers an
historic opportunity for this country to accomplish its modernization,
including commitment to the Rule of Law which Senior General Than Shwe
expressly pledged. [33] Rising to this challenge implies dilemmas and
difficult decisions. When confronted with these dilemmas the temptation
is often to seek refuge in the idealization of the past or the assumption
that the present could be extended indefinitely into the future. The HLT
is confident that there are many in the leadership of the country who
have fully grasped the historical dimension of the challenge and the need
to respond to it. The basic conviction that the HLT expressed to the
leadership of the country at the close of the three-week visit to the
country remains unshaken: its faith in the capacity of the country and
its people to occupy the place they deserve in the international
community, and its hope that the international community, thanks in part
to the patient and consistent efforts of the ILO, will be of assistance
in the process. <br><br>
87. The report was discussed and finalized by the HLT in Geneva.
<br><br>
29 October 2001. <br><br>
<br>
Sir Ninian Stephen, Chairperson <br>
Ms. Nieves Roldan-Confesor, Vice-Chairperson <br>
Mr. K. A. Parinda Ranasinghe <br>
Mr. Jerzy Makarczyk <br><br>
* * * <br><br>
The HLT cannot end its report without expressing its deep gratitude to
all those who helped in many different ways in fulfilling its difficult
and important task as efficiently as possible, over a period of more than
one month. It wishes to thank in particular its secretariat, Mr. Francis
Maupain, Mr. Muneto Ozaki, Mr. Rueben Dudley, Ms. Anne-Marie La Rosa, Mr.
Richard Horsey, Ms. Marie-Anne Plantard and Ms. Tracy Murphy, for their
professionalism, dedication and support. It also wishes to express its
gratitude to all the members of the ILO Mission Coordination Committee
and to the facilitator Mr. Leon de Riedmatten of the Centre for
Humanitarian Dialogue who helped in establishing the programme and made
remarkable arrangements to fulfil it; to the United Nations Resident
Coordinator, Mr. Coeur-Bizot; to Ms. Minako Nakatani and Mr. Khin Maung
Wynn of the UNDP, as well as all other representatives of the United
Nations Organizations and the ICRC in Yangon and in the field whose
advice, interest and logistical support were of great assistance; and to
the four interpreters who accompanied the team with great dedication over
long and tiring journeys, meetings and interviews. The HLT also wishes to
express its sincere thanks to all the NGOs and individuals which
contributed to its programme of meetings and interviews across the Thai
border during the week from 7 to 11 October. <br><br>
____________________________________________________<br><br>
END NOTES (FOOTNOTES IN ORIGINAL]<br><br>
<br>
[24] Some of the reasons mentioned were that there were limits on the
mobility of mules, particularly in the monsoon season, and that mules
were noisy and could therefore not be used in front-line areas.=20
<br><br>
[25] The often-cited figure of 500,000 troops refers to the armed forces
as a whole, including the other armed services. <br><br>
[26] This system does not apply only to the army. In order to compensate
for their low salaries, members of the police or other administrative
bodies (and even judges) receive some land allocations which enable them
to be more self-sufficient in terms of food. See also para. 78 and its
footnote. <br><br>
[27] See Appendix V, para. 18. <br><br>
[28] In this context, they pointed out that the total annual ODA provided
to Myanmar is US$ 1 per capita compared with US$ 35 for Cambodia and US$
68 for the Lao People's Democratic Republic (1997 figures). <br><br>
[29] Situation of human rights in Myanmar: Interim report of Paulo Sergio
Pinheiro, Special Rapporteur of the Commission on Human Rights on the
situation of human rights in Myanmar, UNGA, Off. Doc. A/ 56/ 312 (20
August 2001), paras. 70-74. <br><br>
[30] The HLT received the following information from various sources:
Myanmar has a labour force of just under 20 million persons (1997-98
estimates), of which 19.3 million persons are estimated to have been in
work (excluding unpaid family workers). Agriculture is by far the largest
employer accounting for 63 per cent of the total. Due to the prominence
of agriculture, most employment is in the private sector, with the public
sector only accounting for about 8 per cent of total employment. Wages in
the public sector have been in continuous decline, though payments in
kind have helped mitigate the effects of inflation. In April 2000, there
was a fivefold increase in the nominal wages of civil servants, taking
them back in real terms to where they were in about 1990. While the
agriculture sector has benefited from reform, its enormous potential has
still not been fully exploited. Agriculture development is still affected
by distortions in the land market, inadequate investment in irrigation,
and so on. More generally, poor infrastructure holds back the development
of most sectors of the economy and there is under-investment in key
utilities. The public sector continues to run large deficits, in the
region of 5 per cent or more of GDP. Tax revenue is extremely low at just
over 2 per cent of GDP. State-owned enterprises are generally inefficient
and continue to run at a loss. This acts as a drain on scarce public
sector resources. Public expenditure on crucial health and education
services is below 1 per cent of GDP. Largely as a consequence of public
sector deficits, inflation has averaged close to 30 per cent per annum
during the period from 1995-2000. Myanmar is in arrears on the servicing
of its debt to the Asian Development Bank, to the World Bank and to a
variety of bilateral creditors. Most official capital flows and other
forms of international assistance to Myanmar were cut off in 1988.
Although foreign direct equity investment, trade credits and other
private transfers were comparatively buoyant through to 1997, they have
since suffered both as a consequence of the Asian crisis and as a result
of sanctions. There are growing foreign exchange shortages, and it is now
estimated that Myanmar has sufficient international reserves to cover
only about one month of imports.<br><br>
[31] As explained by this member of the HLT, there exists a clear and
unmistakable distinction between the concepts of forced labour and
&quot;donated labour&quot;. &quot;Donated labour&quot; is, as is inherent
in an act of donation, first and foremost an act done by a person of
their own free will and out of the goodness of their heart without an
expectation of any reward. It is untainted by any element of force or
compulsion. The Buddhist perception of &quot;giving&quot; (Dhana) is that
it is a wholesome act. It is the responsibility of the laity to supply
the fourfold needs of the Sangha (food, clothing, shelter and medicine).
It is also considered to operate towards the diminution and final
eradication of greed, which is accepted as being one of the three root
causes of unwholesome acts. <br><br>
[32] See in this regard: &quot;Stopping Forced Labour&quot;, Global
Report under the Follow-up to the 1998 ILO Declaration on Fundamental
Principles and Rights at Work, 2001. <br><br>
[33] See Appendix IX, para. <br><br>
END OF THE REPORT. SEE ALSO THE APPENDICES.<br><br>
<x-sigsep><p></x-sigsep>
<div align=3D"center">Online Burma Library --
<a href=3D"http://www.burmalibrary.org/"=
 eudora=3D"autourl">www.burmalibrary.org</a><br>
Annotated and classified links to thousands of full-text documents on
Burma/Myanmar<br>
</div>
</html>

--=====================_15888849==_.ALT--