ILO: FORCED LABOUR IN BURMA-21(repo

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[ILO COMMISSION OF INQUIRY ON FORCED LABOUR IN BURMA, SLICE
21]

                 II. PRIOR PROCEEDINGS AT THE ILO

Myanmar ratified the ILO Convention concerning Forced or
Compulsory Labour, 1930 (No. 29) ("Convention No. 29") on 4
March 1955.(1) Myanmar's compliance with its obligations under
Convention No. 29 has been the subject of long-standing
comment by the Committee of Experts on the Application of
Conventions and Recommendations ("Committee of Experts")
and by the International Labour Conference's Committee on the
Application of Standards ("Conference Committee").(2)


A. REVIEW BY THE COMMITTEE OF EXPERTS AND THE CONFERENCE    
COMMITTEE


1. The Committee of Experts

For more than 30 years, the Committee of Experts has reviewed
Myanmar's compliance under Convention No. 29. In the 1960s,
the Committee examined the Government's practices under the
Prisons Act, No. 9, 1894, Villages Act 1908 and Towns Act
1907.(3) In 1968, the Government indicated to the Committee
that the Villages and Towns Acts were not in use and that it
would consider the adoption of new laws to prohibit forced or
compulsory labour. It further represented that forced labour
was not used for public purposes in the country.(4) Reviews
occurred periodically thereafter with no substantial change
in the country's law or practice. In 1991, the Committee of
Experts received a report from the ICFTU containing detailed
allegations about the practice of forced portering, to which
the Government failed to respond.(5) 

In 1993, the ICFTU lodged a representation under article 24 of
the ILO Constitution concerning the practice of forced
portering in Myanmar ("Article 24 Representation").(6)
Accordingly the Committee of Experts suspended its examination
of this aspect of Myanmar's forced labour practices. The
Committee of Experts also sought the Government's comments on
forced labour practices other than portering alleged in the
report of the Special Rapporteur on the situation of human
rights in Myanmar appointed by the United Nations Commission
on Human Rights.(7)

In 1995, the Article 24 Committee recommended that the
Villages Act 1908 and the Towns Act 1907 be amended or
repealed; and that there be necessary follow-up action
including strict punishment of those subsequently having
recourse to forced labour. The Committee of Experts expressed
the hope that the Government would take corrective action, and
noted that the powers provided in the Villages Act 1908 and
the Towns Act 1907 allow for the exaction of forced labour.

Because the Government of Myanmar had not submitted a report
under article 22 of the ILO Constitution, the Committee of
Experts addressed the Government's response to the Article 24
Committee that there was no forced labour in Myanmar but
rather a widespread cultural tradition of voluntary
contributions of labour contemplated by Article 2(2)(e) of
Convention No. 29.(8) The Committee noted that the work
contemplated must be minor, and that the services must be
performed in the direct interest of the community and not
relate to the execution of works intended to benefit a wider
group". The Committee of Experts indicated that "[t]he
construction of a railroad would not appear to meet either of
these criteria". The Committee further noted that the
continuing existence of the powers provided in the Villages
Act 1908 and the Towns Act 1907 made it "difficult to
establish that residents performing work at the request of the
authorities are doing so voluntarily".(9)

In 1996, the Committee of Experts reiterated its previous
findings concerning the Villages Act and the Towns Act and its
view that they provide for forced labour within the meaning of
Convention No. 29. The Committee of Experts noted with concern
the Government's response to the Conference Committee's
request in 1995 for remedial action and a detailed report.(10)
The Committee further noted that, ever since 1967, the
Government had been stating that the Villages Act 1908 and the
Towns Act 1907 had fallen into disuse, and that they were to
be amended or repealed. The Committee remarked that: "[t]he
Government's latest report persists in blurring the
distinction between compulsory and voluntary labour and
contains no indication whatsoever that concrete measures have
been taken to abolish the powers to impose compulsory labour
either in law or in practice".(11) The Committee requested the
Government of Myanmar to supply full particulars to the
International Labour Conference at its 83rd Session in June
1996.


2. The Conference Committee

In the last five years, the Government of Myanmar has been
called before the Conference Committee three times concerning
its obligations under Convention No. 29. On two of those
occasions, its failures to comply have been mentioned in
special paragraphs of the Conference Committee's report.

In 1992 the Conference Committee noted that the Government had
not supplied its report under article 22 in time, and urged
the Government to report to the ILO in the very near
future.(12) A Government representative indicated to the
Committee that: (1) there was no practice of forced labour in
Myanmar; (2) porters who worked for the army did so
voluntarily; (3) recruitment of porters was in accordance with
section 8(1)(n) of the Villages Act 1908 and section 7(1)(m)
of the Towns Act 1907; (4) there were conditions governing
recruitment of porters; (5) porters were not mistreated or
used in military roles; (6) they were entitled, among other
things, to the same medical treatment as soldiers in the event
of injury; and (7) comprehensive and elaborate laws
effectively prevented the practice of forced labour on the
ground.

In 1995, the Conference Committee "called upon the Government
to urgently repeal the offensive legal provisions under the
Villages Act 1908 and the Towns Act 1907 to bring them into
line with the letter and spirit of Convention No. 29, to
terminate forced labour practices on the ground, to provide
for and award exemplary penalties against those exacting
forced labour, and to furnish a detailed report on legislative
and practical measures adopted to fall into line with
Convention No. 29. The case was mentioned in a special
paragraph of the Conference Committee's report(13)

In 1996, the Conference Committee again issued a special
paragraph, in which it "once again firmly required the
Government formally to abolish and urgently to cancel the
legal provisions and to abandon all practices that were
contrary to the Convention. The Committee urged the Government
to prescribe truly dissuasive sanctions against all those
having recourse to forced labour".(14) In a separate special
paragraph the Conference Committee noted "with great concern"
the case of Myanmar as one of continued failure to eliminate
serious deficiencies.(15)


B. THE ARTICLE 24 REPRESENTATION
 
By letter of 25 January 1993, the ICFTU submitted a
representation under article 24 of the ILO Constitution
alleging non-observance by the Government of Myanmar of
Convention No. 29.(16) The Governing Body established a
committee to examine the representation, which issued its
report on 7 November 1994.(17) The recommendations of the
Article 24 Committee were subsequently adopted by the
Governing Body, in November 1994.(18)

The ICFTU alleged that the Government of Myanmar had breached
Convention No. 29 by institutionalizing "the use of forced
labour by military commanders through the [practice of] forced
recruitment and abuse of porters".(19) Based on credible
reports the ICFTU alleged that men, women and children were
routinely rounded up by police and the military to perform
portering services under arduous and abusive conditions,
including insufficient food, lack of medical care,
minesweeping, rape and extrajudicial execution. The ICFTU
further alleged that: (1) the practice of forced portering
constituted forced or compulsory labour as defined in
Convention No. 29; (2) no exceptions in the Convention were
applicable; (3) Myanmar was not in any transitional period
contemplated by Convention No. 29; (4) none of the guarantees
and conditions applying to the practice of forced labour
during the transitional period were being met by the
Government of Myanmar; and (5) the Government of Myanmar had
failed to comply with its obligation under Article 25 of
Convention No. 29 to penalize those who exact forced labour
from others.(20)

The Government of Myanmar communicated with the Article 24
Committee twice.(21) It asserted that: (1) there was no
practice of forced labour or slavery but rather the population
voluntarily contributes labour in pursuance of a centuries-old
tradition of such voluntary contribution; (2) the military
recruits and employs porters to support its campaigns against
insurgent groups near the frontiers in accordance with
relevant provisions of the Villages Act 1908 and the Towns Act
1907; (3) there was no truth in the varied allegations
concerning the abusive nature of portering work and the
conditions under which it is performed, and medical care was
provided when necessary; and (4) the guarantees concerning the
manner of performance of forced labour provided for in
Articles 8-16, 18, 23 and  24 of Convention No. 29 were
satisfied.(22) 

   The Article 24 Committee made the following findings and    
recommendations: 

 (a) the Villages Act 1908 and the Towns Act 1907 provide for
     the exaction of forced or compulsory labour under the     
     menace of a penalty in breach of Convention No. 29;(23)

 (b) the Government of Myanmar had "supplied no indications
     that would bring compulsory porterage within the scope of 
     one of the exceptions provided for in Article 2,      
     paragraph 2, of the Convention";(24)

(c) the Government of Myanmar had not invoked the concept of a
transitional period in its responses to the Article 24
Representation. This was consistent with the position it had
taken in its reports submitted under article 22 of the ILO
Constitution concerning its compliance with its obligations
under Convention No. 29. In those reports the Government had
consistently stated that both the Villages Act 1908 and the
Towns Act 1907 were obsolete colonial era laws, and that the
powers they provided were no longer exercised;(25)

(d) compliance with the obligations in Article 25 of
Convention No. 29 required the immediate repeal of the
relevant provisions of the Villages Act 1908 and the Towns Act
1907, and also penal prosecution of those resorting to
coercion of labour. The Article 24 Committee noted that
"[t]his appears all the more important since the blurring of
the borderline between compulsory and voluntary service
labour, recurrent throughout the Government's statements to
the Committee, is all the more likely to occur also in actual
recruitment by local or military officials".(26)


                      III. FINDINGS OF FACT

The Union of Myanmar is conducting a widespread practice of
forced labour for public purposes as well as for private
benefit. Among the public purposes documented in this section
are: (1) portering, combat, minesweeping and sexual services
for military troops; (2) development and infrastructure
projects to the detriment of the general population; and (3)
military construction projects. As demonstrated below, the
Government of Myanmar uses forced labour for private benefit
in order to: (1) promote joint venture developments, including
the country's oil and natural gas reserves; (2) encourage
private investment in the tourist industry; and (3) benefit
the private commercial interests of military members. As
discussed in this section, the current law of Myanmar
authorizes forced or compulsory labour to be exacted under the
pain of penalty. That law overrides any government directive
attempting to curb abusive practices relating to forced labour
on development projects, and any law making exaction of forced
labour a criminal offence.




1.  International Labour Conference, 82nd Session, Report III
(Part 5), List of ratifications by Convention and by country
(Geneva, 1995), p. 46. 

2.  Myanmar's compliance with its obligations under the ILO
Convention concerning Freedom of Association and the
Protection of the Right to Organise, 1948 (No. 87) has also
been the subject of comment by the Committee of Experts and
the Conference Committee. See, e.g., International Labour
Conference, 83rd Session, "Provisional Record", Report of the
Committee on the Application of Standards (Geneva, 1996),
paras. 166, 169. 

3.  International Labour Conference, 48th Session, Report III
(Part 1), Summary of reports on ratified Conventions (Geneva,
1964), p. 71. 

4.  International Labour Conference, 52nd Session, Report III
(Part 1), Summary of reports on ratified Conventions (Geneva,
1968), p. 57. 

5.  International Labour Conference, 78th Session, Report III
(Part 4A), Report of the Committee of Experts (Geneva, 1991),
p. 99 (the Committee of Experts indicated its hope that the
Government of Myanmar would respond in detail to the matters
raised); International Labour Conference, 79th Session. Report
III (Part 4A), Report of the Committee or Experts (Geneva,
1992), p. 127 (the Committee of Experts reiterated its
comments of 1991, in view of the fact that no report had been
received from the Government). 

6.  For a discussion of the article 24 proceedings, see notes
16, 26 infra and accompanying text. 

7.  Report of the Special Rapporteur on the situation of human
rights in Myanmar, 1993, UN doc. E/CN.4/1993/37 (17 Feb.
1993) ("Report of the Special Rapporteur, 1993");
International Labour Conference, 80th Session, Report III
(Part 4A), Report of the Committee of Experts (Geneva, 1993)
("RCE, 1993"), pp. 114, 115. 

8.  This Article exempts from the general prohibition on
forced labour work which is performed as part of "minor
communal service". See notes 163-165 infra and accompanying
text. 

9.  International Labour Conference, 82nd Session, Report III
(Part 4A), Report of the Committee of Experts (Geneva, 1995)
("RCE, 1995"), pp. 107-110. 

10.  The Government's report merely referred to Article
2(2)(b) (exemption for forced labour as part of one's normal
civic obligations -- see notes 153, 154 infra and accompanying
text) and 2(2)(d) (exemption for forced labour exacted in time
of emergency -- see notes 160-162 infra and accompanying text)
and asserted that the term "forced labour" was not applicable
to work performed pursuant to either the Villages Act 1908 or
the Towns Act 1907, which were both outdated and subject to
review in any event. 

11.  International Labour Conference, 83rd Session, Report III
(Part 4A), Report of the Committee of Experts (Geneva,
1996) ("RCE, 1996"), p. 89. See generally idem, pp. 87-89. 

12.  International Labour Conference, 79th Session,
"Provisional Record", Report of the Committee on the
Application of Standards (Geneva, 1992), pp. 27/37-27/38. 

13.  International Labour Conference, 82nd Session,
"Provisional Record", Report of the Committee on the
Application of Standards (Geneva, 1995), para. 139, ("RCE,
1996"), note 11 supra at 88. 

14.  International Labour Conference, 83rd Session,
"Provisional Record", Report of the Committee on the
Application of Standards (Geneva, 1996), para. 164. 

15.  idem, para. 169. 

16.  Representation under article 24 of the ILO Constitution
against the Government of Myanmar (formerly Burma), for its
violations of the Convention concerning Forced Labour, 1930
(Convention No. 29 of the International Labour Organization),
ratified by Burma in 1955, submitted by the International
Confederation of Free Trade Unions, on 25 January 1993 to the
Director-General of the International Labour Office, on file
with the ICFTU ("Article 24 Representation"). 

17.  See generally: ILO, Governing Body, Report of the
Director-General, Second Supplementary Report, Report of the
Committee set up to consider the representation made by the
International Confederation of Free Trade Unions under article
24 of the ILO Constitution alleging non-observance by Myanmar
of the Forced Labour Convention, 1930 (No. 29) (Geneva,
Nov. 1994), ILO doc. GB.261/13/7 ("Article 24 Report"). 

18.  ILO, Governing Body, minutes of the 261st Session, ILO
doc. GB.261/PV(Rev.) (Geneva, Nov. 1994), para. 61; RCE,
1996, note 11 supra at 88. 

19.  Article 24 Representation, note 16 supra, note at 6. 

20.  Article 24 Report, note 17 supra at paras. 12, 14-19. 

21.  idem, para. 42 (communications in May, and in Oct. 1993). 

22.  idem, paras. 20, 21, 25-40, and 48 respectively. 

23.  idem, para. 48. 

24.  idem, para. 49. 

25.  idem, para. 50. Being satisfied, on this basis, that
there was no question of a transitional period in the case of
Myanmar, the Article 24 Committee did not examine the question
whether forced portering was conducted in accordance with the
guarantees provided in Articles 8-16, 18, 23 and 24 of
Convention No. 29. idem, para. 51. 
 
26.  idem, para. 52. 

[END OF SLICE 21]