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ILO: FORCED LABOUR IN BURMA-01
- Subject: ILO: FORCED LABOUR IN BURMA-01
- From: darnott@xxxxxxxxxxx
- Date: Mon, 07 Sep 1998 23:09:00
[ILO COMMISSION OF INQUIRY ON FORCED LABOUR IN BURMA, SLICE 1]
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____________________________
Other locations/versions of the report:
The Report is also on the ILO website:
http://www.ilo.org/public/english/20gb/docs/gb273/myanmar.htm
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David Arnott (Burma Peace Foundation)]
Geneva, 7 September 1998
**************************************************************
FORCED LABOUR IN MYANMAR (BURMA)
Report of the Commission of Inquiry
appointed under article 26 of the Constitution of the
International Labour Organization to examine the
observance by Myanmar of the
Forced Labour Convention, 1930 (No. 29)
Geneva, 2 July 1998
CONTENTS
Part I. ESTABLISHMENT OF THE COMMISSION
1. FILING OF THE COMPLAINT AND APPOINTMENT OF THE COMMISSION
(1) Filing of the complaint
(2) Provisions of the Constitution of the International
Labour Organization relating to complaints concerning
non-observance of ratified Conventions
(3) Summary of the measures taken by the Governing Body
of the International Labour Office following the
filing of the complaint and establishment of the
Commission
Part II. PROCEDURE FOLLOWED BY THE COMMISSION
2. FIRST SESSION OF THE COMMISSION
(1) Solemn declaration made by the members of the
Commission
(2) Adoption of the procedure to be followed by the
Commission
(3) Communication of additional information
(4) Measures adopted with a view to the Second Session
and the subsequent work of the Commission
3. COMMUNICATIONS RECEIVED BY THE COMMISSION FOLLOWING ITS
FIRST SESSION
(1) Communications received from the parties
(a) Communications from the complainants
(b) Communications from the Government of Myanmar
(2) Communications received from other sources
(a) Communications from member States under article
27 of the ILO Constitution
(b) Communications from intergovernmental
organizations
(c) Communications from non-governmental
organizations
(d) Communications from companies mentioned in the
complaint
4. SECOND SESSION OF THE COMMISSION
(1) Hearing of witnesses
(2) Communications received by the Commission following
its Second Session
(a) Communication from the Government of Myanmar
(b) Communications from non-governmental
organizations
(c) Communications from a company named in the
complaint
5. VISIT BY THE COMMISSION TO THE REGION
(1) Procedure followed by the Commission
(2) Persons and witnesses interviewed
(a) India
(b) Bangladesh
(c) Thailand
6. THIRD SESSION OF THE COMMISSION
Part III. ALLEGATIONS BY THE PARTIES
AND HISTORICAL BACKGROUND OF THE CASE
7. SUMMARY OF THE COMPLAINT AND THE GOVERNMENT's OBSERVATIONS
(1) Factual allegations submitted by the complainants
(2) Legal conclusions submitted by the complainants
(3) The Government's observations
(a) Public purposes or public sector
(i) Portering
(ii) Construction of development and
infrastructure projects by the Government
(iii) Hotel industries in Myanmar
(b) Private benefit or private sector
(i) Construction of the Yadana natural gas
pipeline
(c) The law
(d) Conclusion
8. HISTORICAL BACKGROUND
A. Earlier reports and statements by the Government of
Burma/Myanmar on the application of the Forced Labour
Convention, 1930 (No. 29), comments and representation
by industrial organizations, and observations,
findings and requests by ILO supervisory bodies
(1) Reports under article 22 of the ILO Constitution
and statements to the International Labour
Conference (ILC) presented by the Government,
1960 to 1992, and corresponding comments
(2) 1993 representation under article 24 of the ILO
Constitution
(a) Allegations made by the complainant
organization
(b) The Government's observations as to the
facts
(c) The Government's observations concerning
the Convention
(d) The Committee's conclusions and
recommendations, approved by the Governing
Body of the ILO
(3) Subsequent developments up to the lodging of the
complaint under article of the ILO Constitution
(June 1996)
B. Examination by United Nations bodies of the human
rights situation in Myanmar (particularly with respect
to forced labour)
(1) General Assembly
(2) Commission on Human Rights and Special
Rapporteurs on the situation of human rights in
Myanmar
(3) Secretary-General
(4) Other United Nations bodies
Part IV. EXAMINATION OF THE CASE BY THE COMMISSION
9. CONTEXT OF GENERAL INTERNATIONAL LAW AND REQUIREMENTS OF
THE FORCED LABOUR CONVENTION, 1930 (NO. 29)
A. General international law, including slavery, forced
labour and other slavery-like practices
B. Requirements of the Forced Labour Convention, 1930
(No. 29)
(1) Measures called for under Articles 1(1) and 25
of the Convention
(2) Definition of forced or compulsory labour and
scope of exceptions
(a) Compulsory military service
(b) Normal civic obligations
(c) Prison labour
(d) Emergencies
(e) Minor communal service
(3) Present status of Article 1, paragraph 2, and
Articles 4 et seq. of the Convention
10. BRIEF DESCRIPTION OF MYANMAR
(1) General presentation
(2) Historical background
(3) Administrative structure
(4) Opposition forces
11. LEGISLATION OF MYANMAR RELEVANT TO THE CASE
(1) Requisition of labour under the Village Act and Towns
Act and subsequent orders and directives
(2) Restrictions on the freedom of movement and
citizenship
(3) Compulsory military service and forced conscription
(4) Sanctions for illegally imposing forced or compulsory
labour
12. FINDINGS OF THE COMMISSION CONCERNING THE FACTS
A. Admissibility and probative value of testimonial
evidence and documentary material
B. General pattern of conduct by Myanmar authorities
C. Thematic analysis of the forms of labour and services
requisitioned by certain authorities
(1) Portering
(a) Documentary material
(b) Oral testimony
(2) Military camp work
(a) Documentary material
(b) Oral testimony
(3) Other work in support of the military
(a) Documentary material
(b) Oral testimony
(4) Forced recruitment
(a) Documentary material
(b) Oral testimony
(5) Work on agriculture, logging, and other
production projects
(a) Information provided to the Commission
(b) Oral testimony
(6) Construction and maintenance of roads, railways
and bridges
(a) Documentary material
(b) Oral testimony
(7) Other infrastructure work
(a) Documentary material
(b) Oral testimony
(8) General work
(a) Nature and condition of work
(b) Specific examples from documentary material
and oral testimony
13. FINDINGS AS TO COMPLIANCE WITH THE CONVENTION
A. National laws and statutory or administrative
standard-setting instruments, considered in the light
of the Convention
(1) Provisions of the Village Act and the Towns Act
and subsequent orders and directives dealing
with the requisition of labour
(a) Applicability of the definition of forced
labour
(b) Non-applicability of exceptions defined in
Article 2(2) of the Convention
(c) Expiration of the transitional period
(d) Role of secret directives and payment of
wages
(2) Legislation on citizenship and other instruments
bearing on the freedom of movement
(3) Legislation on compulsory military service
(4) Sanctions for illegally imposing forced or
compulsory labour
B. National practice considered in the light of the
Convention
(1) Requisition of labour
(2) Requisition of labour for various purposes,
considered in the light of the exceptions in
Article 2(2)(a), (b), (d) and (e) of the
Convention
(a) Portering
(b) Military camp work and other work in
support of the military
(c) Forced conscription
(d) Work on agriculture, logging and other
production projects
(e) Construction and maintenance of roads,
railways and bridges
(f) Other infrastructure work
(g) General work
(3) Requisition of labour, considered in the light
of the prohibitions in Article 4 et seq. of the
Convention
(a) Residual relevance of Article 4 et seq. of
the Convention
(b) Violation of specific prohibitions
(i) Imposition of forced or compulsory
labour for private benefit
(ii) Exaction of forced or compulsory
labour from women, children, elderly
people and disabled persons
(iii)Denial of remuneration and
compensation
(iv) Compulsory cultivation
(4) Punishment of the illegal exaction of forced or
compulsory labour
Part V. CONCLUSIONS AND RECOMMENDATIONS
14. CONCLUSIONS AND RECOMMENDATIONS
(1) Preliminary questions
(2) Terms of reference of the Commission
(3) Conclusions on the substance of the case
(4) Recommendations
(5) Concluding observations
APPENDICES
I. Supplementary evidence submitted by the complainants in
October 1996
II. Observation of the Myanmar Government on the initial
complaint and supplementary evidence made by 25 Worker
delegates to the 83rd Session of the International
Labour Conference under article 26 of the ILO
Constitution
III. Rules for the hearing of witnesses
IV. List of documents received by the Commission following
its First Session
V. List of documents received by the Commission following
its Second Session
VI. List of documents received in the course of the
hearings
VII. Summaries of testimony
VIII. List of documents received in the course of the visit
to the region
IX. Maps of Myanmar
X. Names, foreign terms and acronyms
XI. Samples of orders received by the Commission
XII. Order by the Chairman of the State Law and Order
Restoration Council (SLORC) on the subject of
"Prohibiting unpaid labour contributions in national
development projects" dated 2 June 1995
XIII. The Forced Labour Convention, 1930 (No. 29)
*******************************
*******************************
PART I
ESTABLISHMENT OF THE COMMISSION
1. FILING OF THE COMPLAINT AND APPOINTMENT OF THE COMMISSION
(1) FILING OF THE COMPLAINT
1. By a letter dated 20 June 1996 addressed to the Director-
General of the ILO, 25 Workers' delegates to the 83rd Session
of the International Labour Conference (June 1996)(1)
presented a complaint under article 26 of the Constitution
against the Government of Myanmar for non-observance of the
Forced Labour Convention, 1930 (No. 29), which it ratified on
4 March 1955 and which came into force for Myanmar on 4 March
1956. The complaint stated, in particular, that:
Myanmar's gross violations of the Convention [No. 29]
have been criticized by the ILO's supervisory bodies for 30
years. In 1995, and again in 1996, they have been the subject
of special paragraphs in the reports of the Committee on the
Application of Conventions and Recommendations, and this year,
the Government has also been singled out by the Committee for
its "continued failure to implement" the Convention.
In addition, in November 1994, the Governing Body adopted
the report of the Committee it had established to examine the
representation made by the International Confederation of Free
Trade Unions [ICFTU] against the Government of Myanmar for its
failure to ensure effective observance of Convention No. 29.
The Government has demonstrated its unwillingness to act
upon the repeated calls addressed to it by the ILO's
supervisory bodies to abolish and cancel legislation which
allows for the use of forced labour and to ensure that forced
labour is eliminated in practice. In these circumstances, the
Committee on Applications has again expressed deep concern at
the systematic recourse to forced labour in Myanmar.
Despite its protestations that the powers available under
the offending legislation, the Village Act (1908) and the
Towns Act (1907), have fallen into disuse since 1967 and that
these laws are currently under review with a view to their
repeal, the Government has failed conspicuously to provide the
information requested of it concerning concrete action for
legislative change.
Indeed, it is clear that the practice of forced labour is
becoming more widespread and that the authorities in Myanmar
are directly responsible for its increasing use, and actively
involved in its exploitation.
The ICFTU representation presented under article 24 of the
Constitution in January 1993 addressed the particular case of
the forced recruitment and abuse of porters by the military
which was, at that time, the primary cause of concern.
Since then, however, forced labour is being used
systematically, on an ever larger scale, and in an increasing
number of areas of activity. Large numbers of forced labourers
are now working on railway, road, construction, and other
infrastructure projects, many of which are related to the
Government's efforts to promote tourism in Myanmar. In
addition the military is engaged in the confiscation of land
from villagers who are then forced to cultivate it to the
benefit of the military appropriators.
The current situation is that the Government of Myanmar,
far from acting to end the practice of forced labour, is
engaged actively in its promotion, so that it is today an
endemic abuse affecting hundreds of thousands of workers who
are subjected to the most extreme forms of exploitation, which
all too frequently leads to loss of life.
2. Supplementary evidence was submitted to the ILO in the name
of the complainants by a letter dated 31 October 1996 and
is appended to the present report.(2)
(2) PROVISIONS OF THE CONSTITUTION OF THE INTERNATIONAL
LABOUR ORGANIZATION RELATING TO COMPLAINTS CONCERNING
NON-OBSERVANCE OF RATIFIED CONVENTIONS
3. The procedure under which the Workers' delegates filed
their complaint against the Government of Myanmar is set out
in articles 26 to 29 and 31 to 34 of the ILO Constitution,
which read as follows:
Article 26
1. Any of the Members shall have the right to file a
complaint with the International Labour Office if it is not
satisfied that any other Member is securing the effective
observance of any Convention which both have ratified in
accordance with the foregoing articles.
2. The Governing Body may, if it thinks fit, before
referring such a complaint to a Commission of Inquiry, as
hereinafter provided for, communicate with the government in
question in the manner described in article 24.
3. If the Governing Body does not think it necessary to
communicate the complaint to the government in question, or
if, when it has made such communication, no statement in reply
has been received within a reasonable time which the Governing
Body considers to be satisfactory, the Governing Body may
appoint a Commission of Inquiry to consider the complaint and
to report thereon.
4. The Governing Body may adopt the same procedure either
of its own motion or on receipt of a complaint from a delegate
to the Conference.
5. When any matter arising out of article 25 or 26 is
being considered by the Governing Body, the government in
question shall, if not already represented thereon, be
entitled to send a representative to take part in the
proceedings of the Governing Body while the matter is under
consideration. Adequate notice of the date on which the matter
will be considered shall be given to the government in
question.
Article 27
The Members agree that, in the event of the reference of
a complaint to a Commission of Inquiry under article 26, they
will each, whether directly concerned in the complaint or not,
place at the disposal of the Commission all the information
in their possession which bears upon the subject-matter of the
complaint.
Article 28
When the Commission of Inquiry has fully considered the
complaint, it shall prepare a report embodying its findings on
all questions of fact relevant to determining the issue
between the parties and containing such recommendations as it
may think proper as to the steps which should be taken to meet
the complaint and the time within which they should be taken.
Article 29
1. The Director-General of the International Labour
Office shall communicate the report of the Commission of
Inquiry to the Governing Body and to each of the governments
concerned in the complaint, and shall cause it to be
published.
2. Each of these governments shall within three months
inform the Director-General of the International Labour Office
whether or not it accepts the recommendations contained in the
report of the Commission; and if not, whether it proposes to
refer the complaint to the International Court of Justice.
Article 31
The decision of the International Court of Justice in
regard to a complaint or matter which has been referred to it
in pursuance of article 29 shall be final.
Article 32
The International Court of Justice may affirm, vary or
reverse any of the findings or recommendations of the
Commission of Inquiry, if any.
Article 33
In the event of any Member failing to carry out within
the time specified the recommendations, if any, contained in
the report of the Commission of Inquiry, or in the decision of
the International Court of Justice, as the case may be, the
Governing Body may recommend to the Conference such action as
it may deem wise and expedient to secure compliance therewith.
Article 34
The defaulting government may at any time inform the
Governing Body that it has taken the steps necessary to comply
with the recommendations of the Commission of Inquiry or with
those in the decision of the International Court of Justice,
as the case may be, and may request it to constitute a
Commission of Inquiry to verify its contention. In this case
the provisions of articles 27, 28, 29, 31 and 32 shall apply,
and if the report of the Commission of Inquiry or the
decision of the International Court of Justice is in favour of
the defaulting government, the Governing Body shall forthwith
recommend the discontinuance of any action taken in pursuance
of article 33.
(3) SUMMARY OF THE MEASURES TAKEN BY THE GOVERNING BODY OF THE
INTERNATIONAL LABOUR OFFICE FOLLOWING THE FILING OF THE
COMPLAINT AND ESTABLISHMENT OF THE COMMISSION
4. At its 267th Session (November 1996), the Governing Body
had before it a report by its Officers (GB.267/16/2)
concerning the subject of the complaint. The report recalled,
inter alia, the dates of ratification and entering into force
of the Forced Labour Convention, 1930 (No. 29) (hereinafter
"Convention No. 29") for Myanmar. It also pointed out that the
25 complainants were, on the date of filing the complaint,
Workers' delegates of their countries to the 83rd Session of
the International Labour Conference. Accordingly, they had the
right to file a complaint under article 26, paragraph 4, of
the Constitution, if they were not satisfied that the
Government of Myanmar was securing the effective observance of
Convention No. 29. In addition, the report indicated the
following:
No discussion on the merits of the complaint is
admissible at the present stage. It would indeed be
inconsistent with the judicial nature of the procedure
provided for in article 26 and the following articles of the
Constitution that there should be any discussion in the
Governing Body on the merits of a complaint until the
Governing Body has before it the contentions of the government
against which the complaint is filed, together with an
objective evaluation of these contentions by an impartial
body. Nor would such discussion be appropriate while a
proposal to refer the complaint to a Commission of Inquiry is
pending before the Governing Body or while the complaint is
sub judice before a Commission of Inquiry. If there is to be a
Commission of Inquiry -- which it is for the Governing Body to
decide under article 26, paragraph 4, of the Constitution --
it is when the Commission of Inquiry has reported on the
merits of the complaint that the Governing Body may be called
upon to take action in the matter.
5. At the same session, the Governing Body took the following
decisions:
(a) The Government of Myanmar should be requested by the
Director-General to communicate its observations on the
complaint so as to reach him not later than 31 January 1997.
(b) In accordance with article 26, paragraph 5, of the
Constitution, the Governing Body should invite the Government
of Myanmar to send a representative to take part in the
proceedings of the Governing Body concerning this matter at
its future sessions. When so inviting the Government of
Myanmar, the Director-General should inform it that the
Governing Body intended to continue its discussion of this
case at its 268th Session, which was to take place in Geneva
in March 1997.
6. In a letter dated 23 December 1996, the Director-General
informed the Government of Myanmar of the decisions mentioned
above.
7. By a letter dated 5 February 1997, the Permanent Mission of
the Union of Myanmar in Geneva transmitted the observations
of the Government of Myanmar on the complaint and the further
supplementary evidence submitted. The document (without its
confidential annexes) is appended to the present report
(Appendix II).
8. At its 268th Session (March 1997), the Governing Body had
before it another report of its Officers (GB.268/15/1) which
noted that:
Contradictions exist between the facts presented in the
allegations and those set out in the observations of the
Government of Myanmar. It would, however, not be appropriate
to enter into a discussion of the substance if it is
envisaged to set up a Commission of Inquiry under article 26,
paragraph 4, of the Constitution in order to make an
objective assessment of the situation. As was pointed out in
the report of the Officers of the Governing Body at the
latter's 267th Session, it would be incompatible with the
judicial nature of the procedure thus instituted to open up
such a discussion before the Commission of Inquiry submits its
conclusions.In light of the foregoing, the Governing Body
decided that the whole matter should be referred, without
further discussion, to a Commission of Inquiry set up in
accordance with article 26 of the Constitution. The Governing
Body recalled that the members of the Commission would be
nominated in accordance with the same criteria, and would
serve in the same conditions, as the members of commissions
previously appointed under article 26 of the Constitution.
They would serve as individuals in their personal capacity,
would be chosen for their impartiality, integrity and
standing. They would undertake by solemn declaration,
similar to that made by judges of the International Court of
Justice, to carry out their tasks and exercise their powers as
members of the Commission "honourably, faithfully, impartially
and conscientiously". The Governing Body added that
the Commission was to establish its own procedure in
accordance with the provisions of the Constitution.
9. At the same session, the Governing Body decided that the
Commission be composed as follows, as proposed by the
Director-General (GB.268/14/8):
Chairperson:
The Right Honourable Sir William DOUGLAS, PC, KCMG (Barbados),
former Ambassador; former Chief Justice of Barbados; former
Chairman, Commonwealth Caribbean Council of Legal Education;
former Chairman, Inter-American Juridical Committee; former
Judge of the High Court of Jamaica; Chairperson of the
Committee of Experts on the Application of Conventions and
Recommendations.
Members:
Mr. Prafullachandra Natvarlal BHAGWATI (India), former Chief
Justice of India; former Chief Justice of the High Court of
Gujarat; former Chairman, Legal Aid Committee and Judicial
Reforms Committee, Government of Gujarat; former Chairman,
Committee on Juridicare, Government of India; former Chairman
of the Committee appointed by the Government of India for
implementing legal aid schemes in the country; member of the
International Committee on Human Rights of the International
Law Association; member of the Editorial Committee of Reports
of the Commonwealth; Chairman of the National Committee for
Social and Economic Welfare of the Government of India;
Ombudsman for the national newspaper Times of India; Chairman
of the Advisory Board of the Centre for Independence of Judges
and Lawyers, Geneva; Vice-President of El Taller; Chairman of
the Panel for Social Audit of Telecom and Postal Services in
India; member of the United Nations Human Rights Committee;
member of the Committee of Experts on the Application of
Conventions and Recommendations.
Ms. Robyn A. LAYTON, QC (Australia), Barrister-at-Law;
Director, National Rail Corporation; former Commissioner on
Health Insurance Commission; former Chairperson of the
Australian Health Ethics Committee of the National Health and
Medical Research Council; former Honorary Solicitor for the
South Australian Council for Civil Liberties; former Solicitor
for the Central Aboriginal Land Council; former Chairman of
the South Australian Sex Discrimination Board; former Judge
and Deputy President of the South Australian Industrial Court
and Commission; former Deputy President of the Federal
Administrative Appeals Tribunal; member of the Committee of
Experts on the Application of Conventions and Recommendations.
**************************
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________________
NOTES
1. The Workers' delegates were: Messrs. E. About-Risk
(Lebanon), C. Agyei (Ghana), K. Ahmed (Pakistan), M. Blondel
(France), W. Brett (United Kingdom) and U. Edström (Sweden),
Ms. U. Engelen-Kefer (Germany), Messrs. R. Falbr (Czech
Republic), C. Gray (United States), S. Itoh (Japan), Y. Kara
(Israel), A. Lettieri (Italy), I. Mayaki (Niger), S.
Mookherjee (India), B.P. Mpangala (United Republic of
Tanzania) and J.-C. Parrot (Canada), Ms. P. O'Donovan
(Ireland) and Messrs. F. Ramirez Leon (Venezuela), Z. Rampak
(Malaysia), I. Sahbani (Tunisia), A. Sanchez Madariaga
(Mexico), G. Sibanda (Zimbabwe), L. Sombes (Cameroon), L.
Trotman (Barbados) and T. Wojcik (Poland).
2. Appendix I.
[END OF SLICE 1]