Forced Labour Convention, 1930 (No. 29) - Myanmar (Ratification: 1955)

Individual Case (CAS) - Discussion: 2019, Publication: 108th ILC session (2019)



Discussion by the Committee

Government representative – The current democratically elected civilian Government has been transforming the country from authoritarian to a democratic federal union. Myanmar has started to enjoy greater freedom and democratic rights since the emergence of the civilian Government three years ago. Though our democratic transition is in its process and the country is faced with numerous challenges, including constitutional constraint and ongoing armed conflicts in some parts of Myanmar, there are visible improvements in many areas, including health, education, socio-economic sectors. These positive changes will be reinforced by ongoing implementation of the Myanmar Sustainable Development Plan (MSDP), which provides a unifying and coherent road map for all future reforms. The MSDP is in accord with the Sustainable Development Goals (SDGs) including SDG 8.

In a multi-ethnic country like Myanmar, making unity out of diversity is a great challenge. Thus, the Government is striving for sustainable peace and genuine national reconciliation and all-round development while embracing democratic practices, human rights values and the principle of inclusiveness. As part of its agenda for peace, the Government has already convened three sessions of the Union Peace Conference or the 21st Century Panglong Conference, and agreed on a total of 51 basic principles for building a democratic federal union that guarantees security and prosperity for all, creating a peaceful and harmonious society. We are planning to convene three more sessions by 2020 to finalize those fundamental principles.

A total of ten ethnic armed organizations have already signed the Nationwide Ceasefire Agreement. The armed forces have also announced unilateral ceasefire in Kachin and Shan States for four months commencing from 21 December and it was extended again in April. Let me pass the floor to Ambassador Kyaw Moe Tun to apprise you of matters related to Convention No. 29.

Another Government representative – Myanmar associates itself with the ASEAN joint statement to be delivered by Thailand. The joint statement reflects the progress, actions and measures undertaken by the Government of Myanmar in its efforts in the elimination of forced labour. As we are in need of a Constitution that can truly protect the democratic rights of the people, the ruling party has recently taken a bold initiative to amend the undemocratic provisions of the 2008 Constitution. To that end, a joint parliamentary committee was formed, and the amendment of the Constitution is in progress. Our democratic struggle is still very much alive.

As we strongly commit ourselves to the elimination of forced labour, the General Administration Department, which is responsible for many issues and matters relating to forced labour, has been transferred from the military-designated Ministry of Home Affairs to the Civilian Ministry of the Office of the Union Government in order to effectively carry out the actions which contribute to the elimination of forced labour.

We do believe that all efforts towards democratic reforms play a role for the promotion and protection of human rights including labour rights. With this in mind, our Government has been encouraging all the relevant stakeholders to intensify the process of labour law reforms, to further strengthen the culture of tripartite social dialogue, and to educate and train people who are heavily involved in the promotion and protection of labour rights in close cooperation with the ILO. Taking this opportunity, I would like to thank the ILO for its continued assistance.

Being a nascent democratic state, Myanmar faces many daunting challenges. However, our Government is resolute to overcome all the challenges in order to bring about the benefit and betterment of everyone living in the country. Due to our efforts in reforming public institutions and strengthening the rule of law to create a fair and just society, significant progress has been made in many areas, including the promotion and protection of labour rights, which is steadily making progress.

The Government of Myanmar has a strong political will and unwavering determination when it comes to the elimination of forced labour. The President of Myanmar, in his message on Workers’ Day on 1 May this year, underscored the Government’s efforts in bringing about the environment and the condition for the people of Myanmar in which human rights and democracy could fully be enjoyed in a lawful manner. The President highlighted, among others, the promotion of the rights of workers, and the eradication of child labour and forced labour.

One of the root causes of forced labour in Myanmar is due to the decades-long internal conflicts as we have been faced with internal conflicts ever since we gained independence in January 1948. As we understood that the development, whether it is political, economic and social, or cultural, could not be achieved without peace and stability, the current Government has been exerting its efforts to put an end to the armed conflicts in the country and we have undergone rapid social, economic and political transformation in recent years.

We would like to thank the ILO for its remarkable contribution in the elimination of forced labour in Myanmar over the past years. The ILO adopted resolutions relating to the situations of forced labour in Myanmar at the ILC sessions held in 1999 and 2000, respectively. It is noticeable that the complaints on forced labour have significantly decreased due to the Government’s steadfast efforts, which include awareness-raising, workshops, seminars and training conducted in close cooperation with the ILO. Our efforts combined with dedication finally yielded good outcomes, and all sanctions imposed on Myanmar have been lifted at the 102th ILC Session in 2013. As a result of our strong commitment for the elimination of forced labour, new instances of underage recruitment are declining and we are committed to resolve all underage recruitment cases. We look forward to receiving continued constructive cooperation from our partners in this regard.

Since its establishment in 2007 with the signing between the Government of Myanmar and the ILO, the Supplementary Understanding turned out well and satisfactorily met its objective in eradicating forced labour in Myanmar. It had been extended yearly and was in force until the end of December 2018. After the expiration of the Supplementary Understanding, Myanmar has been closely working with the ILO to continue implementing the activities and measures to eliminate forced labour under the newly signed Decent Work Country Programme. Therefore, the time-bound action plan is being prepared to establish an appropriate complaint mechanism. To gain deeper knowledge and better understanding and to learn best practices of other countries in this regard, we had a workshop in January 2019. It was actively participated in by members of the Parliament and the high-level working group and technical working group, representatives of the ILO, Government, Workers and Employers. We have been developing the new action plan in consultation and cooperation with the ILO and the tripartite constituents. The negotiation is at the final stage and the draft will be submitted to the Cabinet for approval.

The time-bound new action plan includes four priorities, namely: institutionalization of national forced labour complaints mechanism; training and awareness-raising on forced labour; capacity-building to end forced labour; and mobilization of tripartite partners for prevention of forced labour in the private sector. We developed this action plan under the Decent Work Country Programme in order to put in place the relevant policies and to coordinate among related ministries. We have already prepared the concept note in order to implement the national complaints mechanism as soon as the new action plan is approved by the Cabinet.

I wish to inform you that the members of the high-level working group have met with the representatives from the relevant ministries and organizations in March and May 2019, and they had fruitful discussions on the establishment of the national complaints mechanism as well as on the interim procedures to resolve the complaints. Indeed, before the national complaints mechanism is put in place, the high-level working group will resolve the complaints made on forced labour by any organizations or individuals, including the ILO, by means of cooperation and coordination with related ministries and organizations.

In addition to working with the ILO, the issue of underage recruitment has been tackled with the collaboration of the UN Country Taskforce on Monitoring and Reporting. Moreover, the Government of Myanmar is actively cooperating with SRSG on Children and Armed Conflict to prevent and address conflict-related violations on children.

In order to further its commitment, in January 2019, the Government established the Inter-Ministerial Committee for the Prevention of Six Grave Violations during Armed Conflict. The Committee held two consecutive meetings in April and May 2019 and discussed the implementation of the new action plan.

As of March 2019, Tatmadaw (the armed forces) has already released a total of 987 minors to their parents or guardians for wrongful recruitment. A total of 448 military officers and other ranks were punished by military disciplinary action and a civilian who helped and encouraged the wrongful recruitment was sentenced to one year of imprisonment under the civilian law. In order to ensure the best interest of children, the existing Child Law (1993) was reviewed. Accordingly, the Child Rights Law has been developed in accordance with the UNCRC. Many chapters have been added to the current law and one of the important chapters includes provisions which prevent anyone from committing serious offences, including the recruitment and use of children in armed conflicts.

Let me now touch on awareness-raising activities which is one of the important components in the elimination of forced labour. Despite the fact that we have achieved many tangible developments in promoting and protecting the labour rights because of our continued efforts in awareness-raising activities and programmes, there remain challenges to overcome. We will therefore continue to conduct more training and awareness-raising courses including training of trainers. The awareness-raising seminars are being held across the country and the awareness-raising brochures are being distributed in many parts of the country in eight ethnic languages. Moreover, salient points of the raising of awareness of forced labour are highlighted in the newspapers, radio, TV programmes and news media, and the awareness-raising billboards are erected all over the country in collaboration with the ILO. A total of 9,221 activities, including awareness-raising workshops, seminars, and talks on forced labour were conducted with the participation of more than 360,000 persons in various townships in states and regions from July 2018 to March 2019. Furthermore, over 96,000 pamphlets have been distributed all over the country. In close cooperation with the ILO, we have conducted training of trainers on the elimination of forced labour with the participation of the members of the high-level working group and the technical working group, including officials from the Tatmadaw and the police, in January 2019. In addition, the ILO conducted 34 workshops, and employees conducted ten other training and awareness-raising sessions on forced labour throughout the country. It is an undeniable fact that the culture of tripartite social dialogue has grown at the national level in Myanmar and plays a significant role to our efforts to eliminate forced labour. The National Tripartite Dialogue Forum established in 2014 meet three times a year and the discussions, decisions and adoptions with regard to the labour-related matters, including the law reforms, are made during the meetings.

We recognize the role played by the Liaison Officer in the promotion and protection of labour rights as well as the elimination of forced labour. We will continue our close cooperation with the ILO and the other relevant partners in our efforts for the promotion and protection of labour rights based on mutual understanding and trust. We do hope that the ILO can maintain its constructive approach and genuine cooperation with Myanmar for the benefit of the people of Myanmar. We wish to express our sincere appreciation to the current Liaison Officer, Mr Rory Mungoven, for his hard work and valuable contribution to the development of labour sector in Myanmar. We look forward to having the same level of cooperation from his successor.

We are fortunate to celebrate the 100th anniversary of the establishment of the ILO and our tireless efforts for the elimination of forced labour should therefore be well recognized. I think it is time that the relations between the ILO and Myanmar are further enhanced. We wish to urge the ILO to upgrade the current Liaison Office into the Country Office taking into account the long-standing cooperation between Myanmar and the ILO.

In conclusion, I wish to express our sincere appreciations to the countries that supported our endeavours in the elimination of forced labour.

Employer members – We have just taken note of the comments of the Government and a number of those comments are very helpful in the context of this case. In the historical context, Myanmar is not new to the ILO. It joined the ILO in 1952 and has ratified 24 Conventions, including three fundamental Conventions and 21 technical Conventions. That tells us that Myanmar has a long-standing understanding of the sorts of obligations that it has under international labour instruments, so there is no question of confusion about the fact the country knows what it needs to do.

Myanmar ratified the Convention in 1955. However, more than half a century later, Myanmar is still regrettably very far from achieving full compliance with this Convention. We note the continuous support from the ILO and the Myanmar Government’s ongoing cooperation in addressing the situation, including the establishment of a Commission of Inquiry in 1997 and several memorandums of understanding signed in 2002, 2007 and most lately, in 2018. We also note that the Committee has discussed this case in total 15 times, albeit that most of those occasions were under the previous regime, so we are looking at a relatively small number of instances under the recently elected democratic civilian regime.

We note that, as recently as this year for instance, the Committee of Experts however double footnoted this case, which means that it remains high on the list of concerns that this Committee deals with on an annual basis. The Committee of Experts commented on Myanmar’s obligation under Article 1 of the Convention to suppress the use of forced or compulsory labour in all its forms within the shortest possible period and that is why we are here now. It is the shortest possible period, not the amount of it, but the fact that it is taking too long to get rid of.

We note that as recently as March 2019, the ILO Governing Body discussed the follow up item to the resolution concerning remaining measures on the subject of Myanmar adopted by this Conference in 2013. We note that the Governing Body, in March 2019, expressed serious concerns over the persistence of forced labour, noting the Committee of Experts’ observations pertaining to the Convention, and urged the Government to intensify its already close cooperation with the ILO for the elimination of forced labour, including under the auspices of the recently signed Decent Work Country Programme, through the development of a time-bound action plan which we have heard the Government say is ready for submission to Cabinet and for the establishment of, and transition to, an effective complaints handling procedure. Turning now to the Committee of Experts’ observations, we note a few issues. First, we note that the Committee of Experts’ focus is on forced labour by the armed forces. The report does not discuss instances or practices in the wider economy. This is an important observation because it places the issues we are dealing with today in the context more of an improving situation than a deteriorating one. In other words, we are down now to the last bits, even as bad as they are. So it is important to note that Myanmar overall can be looked as a case of improvement with a few things, some bad things yet to be dealt with.

The Committee of Experts’ report noted from the report of the detailed findings of the independent international fact-finding mission on Myanmar of 17 September 2018 that the use of forced labour by the armed forces persists, particularly in Kachin and Shan States, as well as among the ethnic Rakhine and Rohingya. The Committee of Experts also noted that almost all of the military personnel found and involved in forced labour received only disciplinary sanctions, and here I would add: noting the Government’s comment that a number of military had been sanctioned and that a civilian who had also been involved had been jailed for a year, I would observe that there seems to be a disparity between the level of sanctions applied within the military and the civilian side, and I would therefore add that to the list of issues that needs to be looked at. There should be an evenness or a clarity of treatment irrespective of who perpetrates the issue.

We reiterate the strong commitment of the Employers’ group to the full elimination of forced labour as defined in Article 2 of the Convention. We consider any form of forced labour unacceptable and we fully condemn the use of forced labour by the army in these areas. The Employers’ group urges the Government to take full, urgent and transparent steps to expedite its obligations under the Convention in this regard.

With relation to penalties, Article 25 of the Convention requires that the illegal exaction of forced or compulsory labour be punishable as a penal offence, and places an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are adequate and strictly enforced.

The Committee of Experts noted with satisfaction the adoption of the Ward or Village Tract Administration Act of 2012, which repealed the Village Act and the Towns Act of 1907 and makes the use of forced labour by any person a criminal offence punishable with imprisonment and fines. However, the Committee noted that no action had been taken to amend article 359 of the Constitution of Myanmar, which exempts from the prohibition of forced labour “Duties assigned by the Union in accordance with the law in the interest of the public” and could be interpreted in such a way as to allow a generalized exaction of forced labour from the population in a number of circumstances. On this point, the Employers note that the country has not been able to undertake a revision of the Constitution yet, but that the State Counsellor recently announced its intention to proceed to a revision of the Constitution. We therefore request the Government to provide information in this regard to understand the steps that the Government has taken and is planning to take to make the revision of the Constitution a reality without delay.

While Myanmar has yet to eradicate forced labour, the measures I have just discussed are important steps towards that goal. There are more, and my colleagues from Myanmar will elaborate on some of these shortly. We appreciate the measures and the support made available by the ILO to the Government and the numerous observations and discussions the Committee, the Committee of Experts and the Governing Body have had thus far. That said, and in recognition of the fact that an unacceptable number of cases of forced labour still exist, we urge the Government to intensify its close cooperation with the ILO to accelerate an end to forced labour without further delay and as efficiently as possible. Particular effort should be made to complete the current work on the establishment of a permanent, effective and trusted national complaint mechanism for handling forced labour complaints.

The Employers’ group believes that Convention No. 29 is important not just because it is one of the fundamental Conventions, but more importantly, because its very essence is the need to protect human dignity and freedom against oppression and slavery. It is therefore essential for Myanmar to fully implement and enforce the provisions of this Convention, both in law and in practice.

We note that the Memorandum of Understanding on an action plan for the elimination of all forms of forced labour and the Supplementary Understanding setting out the complaints mechanism expired in December 2018. However, we have heard from the Government that that work has been progressed and is shortly to be submitted to Cabinet in relation to the action plan and that that sets the scene for the completion of work on the complaints mechanism. Therefore, we can have some confidence too that the new Decent Work Country Programme that was endorsed by the national tripartite dialogue forum in September 2018, which aligns with the broader Myanmar Sustainable Development Plan, will continue and strengthen the efforts made thus far in eliminating forced labour and child labour in Myanmar.

We also note that a new draft complaints mechanism was circulated to the social partners in May for their comment and that supplementary information supporting and explaining the draft mechanism has been similarly circulated in the past few days. The Employers of Myanmar are strongly committed to working constructively with the Government to bring this to fruition.

We also would like to share with you that the private sector, through the Chamber of Commerce and the MGBMA, will soon launch a new labour audit service which has a specific chapter around forced labour. This will raise awareness and will support companies in assessing the presence of any form of forced labour practices in their operations. Additionally, and in recent times, the Chamber of Commerce organized, with the support of the ILO and participation of the International Organisation of Employers, a large forum on Myanmar Responsible Business and Human Rights which will again be helpful in mapping existing initiatives and raising awareness on the importance of business mobilization to prevent any form of compulsory or forced labour.

Make no mistake, Employers are strongly committed to eliminate forced labour in Myanmar and we will work together with the Workers, the Government and the ILO to make real progress as measured by the two major indicators which are: the number of forced labour cases received by the Government and the ILO and resolved, and the number of underage recruits released from forced labour.

Indeed, thanks to the efforts of the ILO and the tripartite partners, we note that the number of complaints received under the Supplementary Understanding have decreased. Last year, 130 complaints were within the Supplementary Understanding mandate. Of these, the large majority – 108 – were cases of underage recruitment; 76 of these were submitted to the Government. During the year, the ILO also closed 431 cases from previous years. Despite the fact that the goal of full eradication of forced labour has not yet been achieved, these are encouraging numbers. We are confident that these efforts together with the Government’s continuing commitment will eventually lead us to full eradication of forced labour in Myanmar.

So to this end, in our way of recommendation, we recommend and urge the Government to continue its efforts to ensure the elimination of forced labour in all its forms, both in law and in practice. We particularly urge the Government to amend any national legislation that is incompatible with Convention No. 29, particularly the Ward Village Tract Amendment Act 2019 and Penal Code; to impose and enforce dissuasive penalties against the perpetrators of forced labour, and to ensure that such dissuasion is evenly and fairly applied across both the civilian and armed forces. Conducting awareness building and capacity-building activities to deter the use of forced labour, we note here too that the country definitely needs to scale the efforts reaching out to the regions and states.

So, as we have heard, there has been a long history of internal conflict in Myanmar, and some states are a lot more difficult to raise awareness in simply because they are a lot more difficult to access in any meaningful dialogue way. That is a particular challenge. Nonetheless, further efforts need to be made in that direction. Lastly, we urge the Government to collect and to periodically provide information on progress made to the ILO, to this Conference and more widely to the wider population, so that the population of Myanmar itself has confidence that the things that they fear most will not happen in the future.

We would also highlight the very significant progress ultimately being made in eliminating forced labour practices, and note that instances now complained of are centred mainly in the armed forces. It is therefore there that the priority must now go to close the gap completely. Recognizing the progress that has been made, can I close by saying, let us hope that the next time that Myanmar is discussed here, it is as a case of progress.

Worker members – In 2013, the Committee decided to end all remaining sanctions imposed on the Government of Myanmar pursuant to the 2000 Conference resolution. That resolution had authorized member States to take measures under article 33 of the ILO Constitution to compel Myanmar to comply with the Recommendations of the 1998 Commission of Inquiry Report into serious and systematic violations of the Convention. The 2013 decision followed the Government’s adoption in 2012 of a joint strategy developed with the ILO to eradicate forced labour by the end of 2015. Tragically, the Government failed in this endeavour: neither by the end of 2015, nor the end of 2018, the deadline established under a renewed action plan. Indeed, many of the activities under the 2012 and 2018 plans were either never implemented or not implemented fully. As a result of the lack of sufficient political will, the exaction of forced labour including forced recruitment by the Tatmadaw continues, particularly in areas of conflict with ethnic communities.

Today the military human traffickers regularly exploit adults and children who end up in situations of forced labour in mining, fishing and other occupations in Myanmar. Others are trafficked abroad including to Thailand and Malaysia for work in fishing, agriculture, construction, manufacturing and other occupations. Some are brutally murdered by their traffickers and left in mass graves along the way. Despite legal reforms to punish the exaction of forced labour in Myanmar, too few have been held accountable. Those who have been punished, mostly lower level soldiers, have received only administrative sanctions not at all commensurate with their crimes.

In recent years, we have seen a Government that remains hostile to transparency, by jailing reporters for obstructing international supervision, including by the UN. We note that the Supplementary Understanding that made clear commitments in 2007 is now lapsed without having been replaced by a functioning national system that has the trust of the social partners and victims. While the establishment of a new government-operated mechanism is to be developed under the terms of the 2018 Decent Work Country Programme (DWCP), it remains to be seen whether this will be effective, given that the military itself perpetrates forced labour and that the Government has not demonstrated to date its ability or willingness to take effective measures to prevent forced labour, to hold perpetrators accountable with effective sanctions and to provide survivors with an adequate remedy.

We are deeply troubled that just six years after the last special sitting on Myanmar in the Committee, we are once again discussing widespread violations of forced labour. The Committee of Experts double footnoted Myanmar expressing deep concern at the persistence of forced labour imposed by the Tatmadaw in Kachin and Shan States as well as among the ethnic Rakhine and Rohingya.

The 2018 report of the independent fact-finding mission on Myanmar provides voluminous credible information on the exaction of forced labour in recent years, especially by the Tatmadaw (the armed forces). With regard to forced labour in Kachin and Shan States, the mission verified a pattern of continuing systematic use by the armed forces of forced labour. In Rakhine State, the mission similarly reported atrocities, including against children and women.

The mission also reported consistent accounts of men and women who were killed by the Tatmadaw in the context of forced labour, either because they refused to work, they tried to escape from the soldiers or were simply unable to continue working. It is true that the Government has undertaken efforts to prevent the forced conscription of children into the army. However, there are credible reports that such conscription continues. The ILO liaison Office in its February 2019 report to the Governing Body reported 116 cases of forced recruitment in 2018, though noted a decline in the number of cases. The ILO also reported that 75 child recruits were discharged in August 2018, including 42 cases submitted by the ILO. Unfortunately there are reports that the Government has taken punitive action against former child soldiers. The 2018 US trafficking in persons report explains, for example, that the Tatmadaw filed fraud charges against a group of minors for lying about their age, rather than referring them to protective services.

In another case, a former child soldier was convicted on charges of defamation and sentenced to two years in prison in April 2018 for talking to the international media. As the Workers’ group has consistently pointed out, those responsible for committing violations of forced labour have not been punished, or punished in a matter commensurate with the crime.

The Committee of Experts highlights that since 2007, only 377 soldiers, of which only 17 per cent were officers, have faced military discipline of any kind under the complaints mechanism. However, we know from previous reports that such discipline can mean, for example, temporary suspension from duty or demotions in rank.

Further, there has been only one person punished under the Penal Code and the report does not indicate exactly what that punishment was. This is simply not acceptable.

We recall in a previous report, from the ILO Liaison Office about complaints it received regarding the practice of forced labour in prison labour camps. There, prisoners were made to work in quarries and plantations run by the corrections authorities for private commercial purposes. Alternatively, prisoners are put to work at private plantations nearby the correction centres, for the private gain of the authorities without being paid.

The Special Rapporteur for Myanmar also expressed deep concern at the use of hard prison labour including the shackling of prisoners as punishment. Other sources have reported the serious abuse of prison labour. This is deeply troubling in its own right, but all the more troubling as the Government has continued to arrest and imprison many people in recent years, simply for exercising their right to free expression, to assembly and association.

Moreover, forced labour is also persistent in the private sector. In 2016, the ILO undertook a detailed survey on child labour and agriculture and specifically in inland fisheries, sugarcane and beans. The findings of that survey were alarming and found that in all three subsectors, children were in conditions of forced labour. Creditable reports have indicated that men, women and children are found in situations of forced labour in agriculture, fishing and prospecting for jade and other precious stones.

The use of forced labour in the jade industry has attracted significant international attention in recent years. A report published by Global Witness in 2015, exposed human rights violations in the jade industry in Kachin State. The mines are guarded by the Tatmadaw and their presence, and the presence of armed ethnic groups, has led to increased abuses such as rape and forced labour around mine sites. Those who risk their lives to extract the jade in this multibillion-dollar industry see little for their labour, with the vast majority of the benefit going to the army and traders.

Furthermore, we express our concern over the discriminatory State policies and practices against Rohingya population. The so-called clearance operations, which commenced in 2017, have led to a humanitarian disaster resulting in the expulsion of over 700,000 people from the Rakhine State. The extreme vulnerability of the Rohingya has led among other problems to a greatly increased risk for forced labour, by both state and non-state actors. For example many women and girls who fled from the army to neighbouring Bangladesh, have been subject to sex trafficking while others are trafficked to labour as domestic workers. Rohingya children fleeing violence have also been abducted in transit and sold into forced marriage in Indonesia, Malaysia and India. Those who are internally displaced also face increased risk to forced labour.

Finally, we recall that those who have exposed forced labour, including in Rakhine State, have been imprisoned by the authorities. For example in October 2017, Kyaw Moe Tun who reported on forced labour cases in Rakhine State was convicted of defamation and incitement under section 505 of the Penal Code and sentenced to 18 months in jail. The developments in Myanmar require the urgent attention of the Government and the international community.

Employer member, Myanmar – I would like to thank the Committee for providing the possibility to comment on the observations contained in the report and give an overview on the contribution of the UMFCCI, the Business Chamber and the private sector in general to ensure Myanmar is compliant with the Convention.

The Decent Work Country Programme for Myanmar signed in September 2018 has an important outcome related to strengthening the protection against unacceptable forms of work, especially forced labour and child labour. Employers are strongly committed to eliminate forced labour in the country and we work together with the social partners, the Government and the ILO to show progress related to the two major identified indicators, the number of the forced labour cases received by the Government and the ILO and resolved and the number of underage recruits released.

Thanks to the efforts of the ILO and of the tripartite partners, the number of complaints received under the Supplementary Understanding have strongly decreased. Despite the goal of full eradication of forced labour has not been achieved yet employers have noted very encouraging numbers which were known already and these progresses should be recognized.

It is also to be noted that there are a number of recent achievements and milestones in the last ten months. Seventy-five underage recruits, including 42 ILO cases were discharged and released from Tatmadaw in September. A short-term consultant was brought in for three months to support the complaints submission process.

Regarding the action plan on forced labour, a training manual on dos and don’ts guidelines and training curricula was agreed and the first TOT session took place on 14 to 15 January of this year. Several dialogues took place at both leadership and political officer levels to foster collaboration.

Myanmar is now in a critical phase as after many years of ILO support it is essential to establish an institutionalized national complaints mechanism for handling forced labour complaints. The system needs to gain trust in confidence by all stakeholders. In this respect, ILO support is still very much needed.

As social partners and private sector representatives, we have to play our part in advocating for a very transparent system, with publicly report cases-related data. We are aware that this is extremely delicate and sensitive – as forced labour is perpetrated by both state and non-state actors, in conflict and non-conflict settings. The Ministry of Labour has recently presented during the last National Tripartite Dialogue Forum – around the end of May 2019, a draft scheme to establish the national complaints mechanism. Complaints could be received by social partners and many different CSOs. The scheme should still be fine-tuned, comment-seeking letters from the Government are being circulated regarding the proposed mechanism, and that seems to be going in the right direction.

To bolster up the process, a knowledge-sharing workshop on national complaints and grievance mechanisms was held by ILO with support from FUNDAMENTALS in Geneva, highlighting the models adopted by several countries such as United Kingdom, Brazil, Qatar and Uzbekistan.

As regards the absence of action regarding the amendment of article 359 of the Constitution, which exempts from the prohibition of forced labour duties assigned by the Union in accordance with the law – in the interest of the public, and could be interpreted as to allow a generalized exaction of forced labour – the country has not been able to undertake a revision of the Constitution yet, but the State Counsellor recently announced the intention to proceed to a revision of the Constitution. If this would happen, we will make sure to draw attention to article 359.

Regarding the report of the detailed findings of the independent international fact-finding mission, we reiterate the strong commitment of the private sector for the full elimination of forced labour, and consider unacceptable the use of forced labour in the country. The Government should ensure full application of the national legislation and the penal code, including proper penalties for the perpetrators.

As concerns training and capacity-building, the country definitely needs to scale the efforts reaching out to all the regions and states. In this regard, a more decentralized approach would definitely be helpful.

The UMFCCI, the Business Chamber and MGMA, Myanmar Garment Manufacturers Association, with the support of ILO/ACTEMP project, have strongly expanded the labour and/industrial relations departments. On 23 May 2019, a new labour audit service which has a specific chapter around forced labour, has been launched: the service will contribute to raise awareness and support companies, in assessing the presence of any form of forced labour practices around their operations. The first workplace visits are scheduled in the week of June 24 and 28. The UMFCCI and MGMA have also dedicated hotlines for company members to give advice regarding the correct practice for overtime and avoid any violation which could eventually result in forms of compulsory or forced labour.

Additionally, the chamber organized with the support of ILO and participation of the International Organisation of Employers, a big forum on Myanmar Responsible Business and Human Rights on May 30 and 31, which again was helpful in mapping existing initiatives and raising awareness on the importance of business mobilization to prevent any form of compulsory or forced labour.

I am also glad to announce that the UMFCCI is officially endorsing full membership to the International Organisation of Employers on June 9, a day before ILC. Being part of this global network will support the work of the chamber in making sure to design the best strategies and plans to completely eradicate forced labour in any business practice.

The UMFCCI treasure our status of being one of the tripartite constituents. With trust and respect, with one goal for the betterment of all, we have established a strong relation among tripartite bodies.

We have succeeded in receiving the Vision Zero Fund Project, granted by the G20, in February 2017 in Hamburg, Germany. It was mentioned yesterday by Ms Angela Merkel, Chancellor of Germany, during her plenary speech, and we were granted the Japanese Grass-root Fund to build the Occupational Safety and Health Training Centre which was completed recently. The Centre will start providing training in the area of OSH, benefiting all social partners; all of these would not have been achieved if it were not for the dedicated efforts of the tripartite constituents. While a young democracy, young economy, this tripartite achievement was applauded by the Ministry of Labour, Germany, a week ago in Berlin when we met to update on the progress of the VZF project.

Another significant achievement of the chamber, is a two-year (2019–20) Global Fund public–private partnership project, granted in the area of access to health, with two local NGOs and one international, Novartis, a pharmaceutical company based in Switzerland as partners. UNOPS is our principle recipient. Application for the Project was done in March 2018 and was approved in August 2018, to reach out to conflict-prone areas where infrastructure is weak for medicine to be delivered in time to get treatment. Target areas include Rakhine, Chin and Sagaing this year, and Kachin, Shan, Mon and Mandalay next year. The objective is to utilize fast moving consumer goods service through the chamber network, provided by private businesses to carry needed medicines to the remote areas, linking source of medicine to reach to the places where needed.

Alongside this project, sideline activities, promoting the UNGC to the businesses in those areas, awareness-raising of respect for labour and human rights, forced labour, child labour, occupational safety and health, etc. will be convened.

I am the focal point from the UMFCCI for this project. I have been to Sagaing Region early March for the project and promoting the UNGC. I planned twice to visit Rakhine around the third week of March and early April, both in vain since some unforeseen things happened in the areas where we would be visiting. Rethinking to visit end of this June. Planning.

The UMFCCI works closely with the Myanmar Ministry of Education in the context of human capital building, strongly supported cooperation with ILO in providing short-term vocational education training in IDP camps in Kachin and in Rakhine with inclusivity, creating access to entrepreneurship, to jobs and to avoid exploitation. Thanks to the ILO. We participated in the ILO and Ministry of Education joint work on labour market assessment in Rakhine, the report was formally presented to the public on 22 May – in the interest of providing decent jobs to the needy – by bridging vocational education and industries, to avoid exploitation.

We met once in every four months at NTDF, 13 times already. The social partners we often meet during the process of labour law reforms and our partnership becomes seemingly stronger.

The growing strength of the tripartite process is a guarantee that social partners are strongly committed to invest all their energy and needed time to finally put an end to forced labour in Myanmar. We will continue working on this.

While working endlessly on strengthening partnerships, it is very discouraging to learn that the double footnoted case on forced labour has popped up. There is a possibility we are missing information; it is also possible that the Committee has not been updated with developments in the process. Whatever it may be, the important thing is, we keep moving in the right direction.

Let the case of Myanmar on Convention No. 29 be heard as a case of progress the next time.

Worker member, Myanmar – Workers in Myanmar oppose violence and coercion of any kind in the communities or at the work place. We have been struggling hard to establish a modern society that is based on equality for all ethnicities and social dialogue.

The application of this Convention in Myanmar was first brought up in a representation under article 24 of the ILO Constitution in 1994. CTUM, known at that time as FTUB, was documenting forced labour cases, and the atrocities of the military junta to support the ILO’s examination of the case. At that time, access to the areas controlled by the Burmese military and the ethnic armed organizations was forbidden. These areas are also rich in natural resources such as timber, gold, precious stones, oil and gas in Kachin, Shan, Karen and Rahkine state, where forced labour was exacted.

Today, free movement is there, although there is limited access to the affected areas. There are complaints that evicted farmers and villagers are still coerced to build roads in outsourced public works, or create profit for the businesses owned by the military personnel complicit in forced labour offences. Myanmar still has to work harder to become a country where forced labour of all forms has been eradicated.

Legal enforcement, labour inspection and freedom of association do not exist in the military controlled and conflict areas. In some of the industrial and garment sector, involuntary and uncompensated overtime work is still found. We have had some cases where the labour inspectors often wrongly interpret the law to put a cap on the maximum claim of the back overtime pay, instead of the whole period of their labour.

Trade unions are deeply worried that the draft amendments of the Labour Organization Law continue to exclude the informal sector and the public sector. The draft amendments still restrict trade union registration by extremely narrow occupations, and intrusive application procedures. These will make workers more vulnerable to forced labour.

Poverty, continuous armed conflicts and forced displacement are pushing thousands of dispossessed farmers, villagers and workers to accept forced labour conditions without choice. The Upper House of the Parliament estimated in 2016 that 2 million acres of land across the country could be considered confiscated. About 11,000 acres of land have been given back to the farmers.

A more inclusive, transparent process at the township level for return and restitution of land is needed. The procedure is still complicated by complicit commercial concessions, misclassification, as well as lack of documentation. More needs to be done to restore the legitimate rights to land, and compensation for the dispossessed farmers and villagers.

First and foremost, it is the responsibility of the Government to ensure that villagers displaced by armed conflicts do not lose their land. Today, about 5 million Myanmar workers are working abroad. They are vulnerable to illegal recruitment fees, ineffective administration, syndicated corruption subjecting them to forced labour conditions, illegal migration and human trafficking.

Although our laws put a cap of about US$100 to charge Myanmar workers seeking employment abroad, many workers end up in debt after paying a much higher fee of US$600 to US$800 to the agency companies or brokers. False and substitute contracts are common.

For example, a Myanmar domestic migrant worker in Singapore was placed to work for two households without holidays and leave. She was not allowed to quit or change the terms and place of work, unless she paid a compensation of six months’ salary to the broker. In other cases, workers sent to Thailand were repatriated since no job had been arranged. Others became undocumented workers after realizing that the visa and work permits arranged by the brokers were fake.

Involuntary domestic servitude, forced marriages across the border in China, and sex trafficking persist to account for 70 per cent of the cases reported by the Myanmar Anti-human Trafficking Police in 2018. These female victims, estimated to be in thousands are unable to complain, and are considered cases of overstay in the destination country without due redress and rehabilitation.

Myanmar is a country in transition. Trade unions are involved in the tripartite monitoring board with the migrant recruitment agencies association, and the anti-trafficking police to review complaints. By now, 22 agencies have been blacklisted and remedies have been provided to the complainants. This is a very small step forward compared to the severity of the problem and support by the ILO is needed.

We need to ensure consistency and effective enforcement of this Convention in all the national legislations, and the internal rules of the public bodies would be the best if they can be included in the disciplinary codes of the military.

To do so, we urge for the establishment of a Parliamentary Commission on forced labour. The commission should be mandated with investigative powers to oversee the enforcement of the recommendations drawn by the international institutions regarding forced labour and human trafficking, including the conclusions of this Committee.

Government member, Thailand – I have the honour to deliver this statement on behalf of the Association of Southeast Asian Nations (ASEAN). ASEAN recognizes that the democratic reforms process in Myanmar is gaining momentum, producing tangible results in the field of promotion and protecting labour rights, including the elimination of forced labour.

ASEAN believes that Myanmar’s long-standing cooperation with the ILO also contributes to the Government’s efforts in the elimination of forced labour. ASEAN welcomes the signing of the Decent Work Country Programme between Myanmar and the ILO in September 2018 since it will lead to more positive and effective reforms in promoting and protecting the rights of labour. ASEAN also expects the action plan being prepared under the Decent Work Country Programme to be finalized soon, particularly the setting up of a national complaint mechanism of the Myanmar Government to end labour.

While recognizing effective measures taken by Myanmar to eliminate forced labour in cooperation with the ILO, ASEAN would like to propose to take more innovative measures to intensify raising awareness throughout the country in order to prevent the occurrence of forced labour, not only in the public sector, but also in the private sector. ASEAN calls on the ILO and international community to continue engaging with Myanmar constructively, and assisting the Government’s endeavours for the elimination of forced labour.

Government member, Romania – I am speaking on behalf of the European Union (EU) and its Member States. The Candidate Countries the Republic of North Macedonia and Albania, the country of the Stabilisation and Association Process and potential candidate Bosnia and Herzegovina, the EFTA country Norway, member of the European Economic Area, as well as the Republic of Moldova and Georgia align themselves with this statement. The EU and its Member States are committed to the promotion, protection and respect of human rights and labour rights, including freedom of association, of assembly and abolition of forced labour. We support the indispensable role played by the ILO in developing, promoting and supervising the application of international labour standards and of fundamental Conventions in particular. The EU and its Member States are also committed to the promotion of universal ratification, effective implementation and enforcement of the core labour standards. We wish to recall the importance we attach to improvements with regard to human rights, democracy and the rule of law in Myanmar. Compliance with Convention No. 29 is essential in this respect. While acknowledging the progress made over the last years, we note with regret that this case is now being addressed as a serious one in relation to elimination of all forms of forced labour.

Based on the report of the Committee of Experts, cases of forced labour, including underage recruitment by the Tatmadaw army are still being reported and were confirmed by the independent fact-finding mission established by the Human Rights Council, particularly in Kachin and Shan States, as well as among the ethnic Rakhine and Rohingya. Often, victims were given insufficient food of poor quality, did not have access to water and were kept in inadequate accommodation, and some were subjected to violence if they resisted, worked slowly or rested. Female victims also faced sexual violence.

Forced labour remains a persistent phenomenon in the country, despite the continuous engagement on the issue of the ILO and member States for over two decades now. The Memorandum of Understanding on a joint strategy for the elimination of forced labour was signed in 2012, and then another Memorandum of Understanding in January 2018 which agreed on a new action plan for the elimination of all forms of forced labour for the year of 2018, followed by the transition to the Decent Work Country Programme in September 2018.

The EU and its Member States are also actively engaging with the Government on improving labour rights in the country – including through the Myanmar Labour Rights Initiative. We reconfirm our strong commitment to support the country in this regard. In October 2018 and February 2019, the EU had high-level missions to the country in the context of the enhanced engagement under the Generalised Scheme of Preferences arrangement for Least Developed Countries (Everything But Arms). The EU’s Generalised Scheme of Preferences requires countries to abide by the principles of the fundamental labour Conventions. This provided the opportunity for a comprehensive dialogue with national authorities, including on labour rights issues. The discussions continued during a senior officials’ meeting in Brussels in mid-May and will continue during the human rights dialogue in the country on 14 June.

In the context of today’s discussion in relation to the persistence of forced labour, we welcome that the Government appears to continue working together with the ILO on the existing ILO-led complaints mechanism on forced labour until a proper national mechanism for complaints is established and that the national tripartite dialogue forum is consulted in the establishment of the national complaint mechanism. At the same time, we would like to express our deep concern over a number of issues:

- Progress in the establishment of the national complaint mechanism on forced labour – While noting a new version of a national action plan to set up the mechanism was agreed with the Minister of Labour, Immigration and Population, it has not been endorsed by other ministries, and in particular by the Ministry of Defence administering Tatmadaw. Even once set up, it still remains vital that the complaint mechanism is, in practice, accessible in particular for victims of the conflict areas, complaints are independently investigated, and victims protected. Meanwhile, cooperation with the ILO-led complaint mechanism has to continue.

- Lack of penal prosecution of offenders – While a number of military personnel were punished by disciplinary action only, with only one person punished under the Penal Code, the strict application of the provisions of the Ward or Village Tract Administration Act of 2012 and the Penal Code is essential to make the use of forced labour a penal offence and dissuade the perpetrators. Moreover, the punishments should be adequate and strictly enforced.

- Article 359 of the Constitution remains unchanged despite earlier Government promises – the article exempts from the prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public” and as such could be interpreted as a generalized exaction of forced labour from the population.

We note that the discussion about the changes in the Constitution is ongoing in the Parliament and we hope that article 359 will be amended in the process. However, we are concerned that despite progress made in the last years on labour issues, we are now at a turning point. We therefore urge the Government to take the necessary measures, including further capacity-building of various actors, clear instructions of the military not to rely on forced labour, proper investigation and sufficiently dissuasive sanctions and the finalization of the action plan on forced labour, which is currently drafted with support of the ILO, to address the Committee’s concerns without delay.

While the elimination of forced labour is the focus of this discussion, we also urge the Government to take the necessary measures to:

- ensure that the current drafts of the Labour Organization Law and the Settlement of Labour Dispute Law comply with international labour standards. While we note that the latter Law was adopted in May, albeit not yet fully assessed, we recognize some progress such as the elimination of sanctions of imprisonment. However several gaps remain, including the non-coverage of the public sector. In addition, we have not yet seen the expected progress on the draft Labour Organization Law. In fact, the current draft, if adopted, would represent a step backwards. We urge the Government to revise the draft in a tripartite manner and by using ILO technical assistance to bridge the current gaps to international labour standards;

- ratify the Minimum Age Convention, 1973 (No. 138) – We note that tripartite consensus was reached on the issue. We urge the government to swiftly ratify Convention No. 138 as this will be a very important step to ratification of all five remaining fundamental ILO Conventions;

- align the current draft of the Child Rights Law with international labour standards on child labour. We take note that it is going to be discussed during the current parliamentary session;

- adopt the already finalized list of hazardous jobs to effectively fight child labour;

- implement measures based on tripartite dialogue to address issues that limit freedom of association in practice;

- take effective measures to ensure that the civil liberties of workers are ensured, including by revising the Peaceful Assembly and Peaceful Procession Law in line with the recommendations of the ILO direct contact mission of October 2018. It remains particularly vital in view of charges put forward in February 2019 against trade unionists in Mandalay;

- take further steps to improve occupational safety and health – while we acknowledge the recent enhancement of the law as a positive step forward, we urge the Government to effectively implement the law and to regularly revise it in particular to further broaden the scope of the law.

The EU and its Member States will continue to assist the Government in this respect and we will continue to closely monitor the situation in the country.

Government member, China – We notice that with the help of the ILO, the Myanmar Government has actively conducted a number of activities promoting the elimination of forced labour and formulated a number of regulations and laws, and forced labour has been substantially reduced. In 2018, the Myanmar Government signed with the ILO the Decent Work Country Programme, and development and cooperation are very important to realize decent work in member States.

The Chinese Government urges the ILO and the international community to help the Myanmar Government to eliminate forced labour, provide more development assistance. We support the Myanmar’s Government request to turn the ILO Liaison Office into a regular ILO Myanmar Office, and we also encourage the Myanmar Government to adopt new action plans to establish a forced labour complaints mechanism.

Worker member, Japan – While we note the efforts of the Myanmar Government to eliminate forced labour by the extension of the Supplementary Understanding and the agreement of the first Decent Work Country Programme in 2018, we would like to share our concerns on the forced labour situation in Myanmar described by the UNHRC independent fact-finding mission report in 2018.

First, the case of forced labour by Tatmadaw military forces of Myanmar, and ethnic armed organizations for public works. The mission found a pattern of systematic use of men, women and children for forced labour across Kachin and Shan States, throughout the reporting period, including in areas of the states not subject to active conflict. In many instances the Tatmadaw arrived in a village and arrested many people who were then detained for forced labour, without warning or consultation. They were detained near the villages or made to travel long distances, made to do different work such as cooking for Tatmadaw, portering, digging trenches, cutting down trees, building roads, or made to walk in front to show the routes, or acting as human landmine sweepers to Tatmadaw.

The duration of forced recruitment varies from a day to months. The forced recruitment includes women, children as young as 12, as well as teachers. In 2012, the Government and the United Nations signed a joint action plan to end the recruitment and use of child soldiers. In 2018, it was reported that the total number of released children since the signing of the plan was over 924. They were kept in inhumane conditions without adequate food, water or other facilities. There was no compensation of their labour. Violence, torture, sexual violence and rapes were reported. These situations are still prevalent in Kachin and Shan states. Though there are serious cases of forced labour, we acknowledge, once again, the efforts of the Government to eliminate forced labour.

I take this opportunity to recall the main decision of the last ILO Governing Body in March on this case as follows: Having considered the report submitted by the Director General, the Governing Body expressed serious concern over the persistence of forced labour, and urged the Government to intensify its close cooperation with the ILO for the elimination of forced labour. It also encouraged the Government to promote decent work through responsible investment policies in line with the Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy.

We wish further efforts of the Government to improve the situation to eliminate forced labour.

Government member, United States – In March 1997, the ILO Governing Body established a Commission of Inquiry to examine allegations of serious widespread forced labour in Myanmar. The ILO has since worked closely with the Government to address the Commission’s subsequent findings, beginning with the agreement to appoint an ILO Liaison Officer in 2002. Significant progress was made. The 2007 Supplementary Understanding established a joint ILO–Government complaints mechanism for victims of forced labour. The 2012 adoption of the Ward or Village Tract Administration Act made the use of forced labour by any person a criminal offence punishable with imprisonment and fines.

Despite progress over the years, recent reports, including the September 2018 report of the detailed findings of the independent international fact-finding mission on Myanmar, point to the continued use of forced labour by the military, particularly in Kachin and Shan States, as well as among ethnic Rakhine and Rohingya.

The Supplementary Understanding, providing the legal basis for the ILO’s involvement in receiving and referring forced labour complaints, lapsed in December 2018 with no Government complaints mechanism in place. While the Government has recently met with the ILO on outstanding cases and is developing a proposal for its own complaints mechanism, the current proposal does not provide sufficient victim protection or articulate a credible process for independent investigations.

Significant efforts are needed to establish the conditions necessary for a government-run complaints mechanism to function effectively. To date, almost all military personnel found involved in forced labour have received only internal disciplinary action. Only one perpetrator has been appropriately punished under section 374 of the Penal Code. Continued inadequate enforcement will hinder the effectiveness of any complaints mechanism. Additionally, while a 2019 action plan has been negotiated with the ILO, the Government has yet to secure endorsement from all necessary ministries and entities, including the military. We urge the Government to take all necessary measures for the full elimination of all forms of forced labour, including:

- develop and operationalize, in close cooperation with the ILO, an accessible, credible, and accountable mechanism for receiving and resolving complaints of forced labour;

- endorse and implement the 2019 action plan;

- address the full backlog of cases under the Supplementary Understanding mechanism;

- prosecute perpetrators under section 374 of the Penal Code;

- amend article 359 of the Constitution;

- continue to raise awareness and capacity-building on forced labour, particularly in areas experiencing ongoing violence, including through intensified public awareness campaigns.

Lastly, recognizing that the Government has accepted technical assistance, we urge the ILO to prioritize assistance on forced labour, including within the Decent Work Country Programme framework, and to actively solicit donor support where needed.

Employer member, Sri Lanka – The EFC from Sri Lanka speaks as part of the Employers’ group and in solidarity with the representations made by the Employer spokesperson as well as our Employer colleague from Myanmar, the Myanmar Federation of Chambers of Commerce and Industry.

We wish to commend the interventions implemented by our colleagues to alleviate and eventually eliminate forced labour, specifically interventions to improve compliance of laws and international labour standards, such as the special audit with emphasis on eliminating forced labour-related practices; it is a noteworthy contribution.

The Myanmar Chambers of Commerce efforts, together with the tripartite stakeholders to improve the country’s socio-economic conditions, including worker welfare, is progressive and deserves higher recognition and encouragement. We hope that the next time, if this Committee of Experts were to examine Myanmar, it would be as a case of progress.

Government member, Bolivarian Republic of Venezuela — The Government of the Bolivarian Republic of Venezuela would like to thank the distinguished representatives of Myanmar for their presentation regarding compliance with the Convention. We appreciate the progress made by the Government of Myanmar to eliminate forced labour, making significant progress in close collaboration with the ILO.

We would like to highlight the process of democratic reforms that is producing tangible results in Myanmar with regard to the promotion and protection of labour rights, including the elimination of forced labour. We appreciate the Decent Work Country Programme, signed in September 2018 by Myanmar and the ILO, given that it represents not only a significant step forward for the Decent Work Agenda, but also an effective contribution to the reforms for the promotion and protection of labour rights.

We welcome the fact that the number of cases of forced labour has decreased significantly and call on the ILO and the international community to continue collaborating with the Government of Myanmar in further efforts to eliminate forced labour.

The Government of the Bolivarian Republic of Venezuela hopes that the conclusions of this Committee, the result of this debate, will be objective and balanced and that the Government of Myanmar will therefore be able to proceed towards full compliance with the Convention.

Worker member, Canada – In its efforts to achieve compliance with the Convention, the Government of Myanmar must address weaknesses in land policies that risk leaving entire communities vulnerable to conditions and practices that the Convention seeks to eliminate.

The Government classifies about a third of the country’s total land area, as vacant, fallow, or virgin land. Much of this land is actively managed by communities as farmland or productive forest in accordance with customary law and practice. Those using such land usually lack formal documents for it.

Under the Vacant, Fallow, Virgin Land Management Law, which was amended in September 2018, anyone occupying or using such land was given six months’ notice to apply for an official permit to use the land or face eviction and up to two years in jail for trespassing on land they have lived or worked on their whole lives.

Large numbers of people in Myanmar were unaware of the amendments and deadlines and could not file claims. Others displaced by armed conflict were unable to file for a permit for their lands.

This policy risks escalating land disputes in areas, such as Kachin and Shan States where there are more than 100,000 displaced persons. There is significant risk that permits to use vast areas of land designated as vacant, fallow or virgin, but belonging to people who have been internally displaced or made refugees, will be granted to investors.

Although the amended law exempts “customary lands designated under the traditional culture of ethnic people”, customary tenure is still not legally defined in this or in any other law, leaving decisions over what counts as “customary” to administrators who may themselves be implicated in land grabs.

The law creates incentives for authorities to take land from traditional communities and opens the possibility that private companies can make claims to this land. For instance, applications by companies and individuals to use vacant land trigger a 30-day objection period, with a notice displayed outside local government offices. Many residents of camps would be unlikely to see these notices, let alone act on them with the required “evidence”.

In Kachin, a state shaped by decades of civil war, vacant land is becoming scarce and being lost to expanding banana fields. It is increasingly difficult to earn a living. There are documented cases where Government militia forced farmers to grow commercial crops and later agreed to “rent” their land to companies for banana plantations. Locals are told they are being compensated for land use but the US$36 they received per acre also included the crops and all of their labour. In addition, companies use pesticides that has led to the contamination of water and farmers fear the irreversible impact on their land and their only means of income.

There are difficulties to take action against companies as the majority of plantation sites are in conflict zones and they are doing their business under the protection of the armed forces.

Land policies need to address these issues and not deprive people of stable livelihoods or expose entire communities to the practices of exploitation that the Convention seeks to remedy.

Government member, Canada – Canada thanks the Government of Myanmar for the information provided today. Recalling Canada’s statement on Myanmar delivered during the 335th Session of the Governing Body in March 2019, Canada notes the Government’s efforts to address and eliminate the use of forced labour and the progress made on labour law reform to date.

However, it is clear that much more work remains to be done to effectively end the use of forced labour in the country. In particular, Canada remains deeply concerned about the persistence of forced labour, under violent and inhumane conditions, imposed by the Tatmadaw in Kachin, Shan and Rakhine States in Myanmar. We also observe with disappointment that military personnel who extract forced labour largely receive only disciplinary sanctions instead of criminal penalties under the Penal Code.

We note that no action has yet been taken to amend article 359 of the Myanmar Constitution, potentially allowing for an arbitrary or generalized exaction of forced labour from the population. Canada also reiterates its concerns about the absence of a formal and independent mechanism to address complaints of forced labour and provide support for victims.

We therefore urge the Government of Myanmar to take immediate action to: first, strengthen its efforts to ensure the elimination of forced labour in all its forms, in both law and practice and in line with international standards, including forced labour imposed by military, public sector or civilian authorities; second, strengthen efforts to ensure the prosecution of perpetrators and end impunities, and ensure that penalties imposed by law for the extraction of forced labour are adequate and strictly and uniformly enforced against perpetrators; third, amend article 359 of the Constitution to clarify that forced labour may not be extracted from the population under any circumstances; and finally, ensure, in coordination with the ILO, timely establishment of an independent complaint mechanism, with nation-wide reach, timely and effective follow-up, and protection for victims.

We urge the Government of Myanmar to ensure that all reforms are consistent with international labour standards and the result of genuine and effective tripartite dialogue. In that regard, we note the extension of the national tripartite process and the holding of the National Tripartite Dialogue Forum in May 2019, and encourage the Government to take the concerns and comments of stakeholders into account during the legislative and policy development processes.

Finally, we encourage the Government of Myanmar to continue its close cooperation with the ILO towards achieving these objectives.

Observer, International Transport Federation (ITF) – I will speak on the issue of human trafficking and forced labour in fisheries in the context of both internal and external migration. The fisheries sector is one of the major components of Myanmar’s economy, employing a total of 3.3 million people. A 2015 ILO report on internal labour migration in Myanmar found that working conditions in the local fishing industry involved physical violence, debt bondage, salaries that fall short of original terms and lack of food. Some 39 per cent of respondents to the ILO survey in the fishing industry were in a situation of forced labour, compared with 26 per cent overall and 26 per cent of respondents in the fishing industry were in a situation of trafficking, compared with 14 per cent overall. Policymakers will do well to adopt a sectorial approach in formulating action plans to combat human trafficking and forced labour in the local fishing industry.

I will now turn to the situation of migrant Burmese fishers. Migrant workers from Myanmar make up a large proportion of the fisheries workforce in Thailand. The Fishers’ Rights Network, which is an ITF initiative to build an independent union of fishers in Thailand, mainly organizes migrant fishers. Now, more than 90 per cent of the Burmese fishers the FRN has interviewed in the past 12 months alone has said that they are in debt bondage for more than 20,000 baht, which is roughly US$600, which represents a debt large enough that they cannot pay it off quickly. Exploitation of Burmese fishers is rife.

It was also reported by The Guardian newspaper that Rohingha migrants trafficked through deadly jungle camps have been sold to Thai fishing vessels as slaves. Deceptive and coercive recruitment, involving unscrupulous agents or brokers, including Myanmar itself, is a key element in the placing of fishers into exploited situations.

The Government of Myanmar has taken some positive steps to address the issue. Thailand and Myanmar signed a Memorandum of Understanding on cooperation in the employment of workers in 2018 which includes measures on trafficking. Myanmar is also a member of the ILO led SouthEast Asian Forum to end Trafficking and Forced Labour of Fishers and since February of this year, the ILO, together with the Ministry of Labour and the ITF, has helped lead pre-departure orientation for fishers going to work in Thailand. However, despite these initiatives, as our statistics suggest, much more needs to be done. The Government of Myanmar should, as a minimum, ratify and effectively implement ILO Convention No. 188 on Working Fishing and follow the ILO’s General Principles and Operational Guidelines for Fair Recruitment to the letter. The Government should also continue to work with the ILO and the ITF on pre-departure training and related matters.

Government member, India – We thank the delegation of Myanmar for its submission on this agenda item, and the comprehensive update provided therein. We take positive note of the significant progress made by the Government of Myanmar in furthering the ILO Decent Work Agenda, strengthening tripartite social dialogue, and undertaking labour reforms, inter alia, in accordance with this national context and priorities.

As a friendly neighbour, we are fully aware of this context of the ambitious political, economic and social agenda being pursued by the democratically elective civilian Government of Myanmar, and understand the challenges it faces in taking forward the peace process, building institutions and strengthening the role of law, including for the protection and promotion of labour to create a fair and just society for all its people.

We sincerely appreciate the sustained commitment of the Government of Myanmar to create decent jobs, promote responsible investment, strengthen the culture of tripartism, and social partnership, including freedom of association undertaking labour reforms and eliminate forced labour under the auspices of the recently signed Decent Work Country Programme.

The development of an updated action plan including for the establishment of a national complaints mechanism, in close cooperation and consultation with the social partners, and greater efforts towards awareness-raising and capacity-building through training for eliminating forced labour, are other positive initiatives of the Government. The incidence of forced labour in Myanmar has significantly come down, and it is clearly on a declining trend due to the measures taken not only by the Government of Myanmar, but also its Parliament by means of appropriate amendment of the national Constitution.

We support Myanmar’s continued cooperation and constructive engagement with the ILO. The ILO and the international community should constructively engage with and fully assist and extend all technical assistance to the Government of Myanmar in its efforts to help realise its overall national economic and social policy objectives by promoting decent work and eliminating forced labour. We wish the Government of Myanmar all success in its endeavours.

Worker member, Malaysia – The Global Slavery Index (GSI) Report on Myanmar estimated 575,000 people to be living in modern day slavery. For every 1,000 persons, 11 persons were victims of slavery in Myanmar. GSI also reported that a key flash point for this was the mass displacement, abductions, sexual violence, and murders committed against the Rohingya population.

Four months ago, Myanmar’s Ministry of Labour, Immigration and Population permanent secretary, Mr U Myo Aung, told the media that Myanmar workers working overseas hit 5 million. The actual figure, in my opinion however, is much larger than this because just in Malaysia, as at 2017 there were already more than 450,000 Myanmar workers. Many of these Myanmar workers fled the country to greener pastures in the nearby countries such as Thailand and Malaysia only to face harassment and victimization even before they exit Myanmar.

It is reported that in Myanmar, there is a one-stop centre processing exit visas for workers. This one-stop centre that claims to be the exclusive service provider for running visas and consular services for Myanmar Embassies in China, France, Italy, Japan, Malaysia and Singapore. The costs of visas have escalated multiple times and on top of the visa fees, the workers have to pay service fees.

It is reported that prior to December 2015, Myanmar workers heading to Malaysia paid US$6 for visas but since 2016, the workers are paying a whopping US$83 for Service Fee, System Fee and Immigration Security Clearance fee over and above the visa fees. The visa fees have escalated ten times more and health checks have arisen from US$10 to US$56. These monies are excluding the hundreds of dollars paid to employment agencies that arrange the jobs. Very few workers can afford to pay these new additional fees so they take heavy interest loans or mortgage their property or sell them altogether to pay to travel abroad to seek better livelihood. This drives them into debt bondage and they live on borrowed income for the rest of their lives. Syndicate companies or workers future employers in some cases, create this drive to debt bondage. They are moneylenders or they facilitate the lending. Once aboard, the workers lose their freedom, they have to work long hours to support and pay back the debts.

Despite the efforts put in by the ILO through various programmes, the debt bondage keeps increasing. So Myanmar, being a country that has ratified the Convention, ought to negotiate a G2G Agreement with Malaysia as soon as possible to end the debt bondage and to protect migrant workers heading towards Malaysia for a better livelihood.

Employer member, Singapore – I think we have heard a lot about the comments made by the Committee and also cases presented, or past cases, but I think we see statistics coming down. It is a good sign and I will give credit to the Employers and even to the trade unionists who work in very tight cooperation together with the Government. We need to put a fair statement here and I think what is more important is moving forward. What are the action plans that are going to be put in by the social partners with the help of the ILO as well? I think those are important. We need to emphasize on that, work on that, and I think we would be able to see some light at the end of the tunnel.

A few things that I would like to just re-emphasize is that the training to the employers about forced labour should continue. We should also within the country set standards and guidelines for employers to follow. I think this is important moving ahead. Likewise, the union leaders, you are on the ground, have to advise the employers. We need people to be on the ground to alert the employers as well.

Lastly, we should not forget that the Government of Myanmar plays an important role. We can see that tripartism is important even though the country has less than three years of democracy but I think that we are seeing tripartism in action and we need them to address these domestic issues with the help from the ILO.

Government member, Nicaragua – My delegation would like to welcome the Minister of Labour of Myanmar and His Excellency the Permanent Representative; and express our appreciation for the report presented to this Committee pertaining to the Convention. We also appreciate the efforts made by the Government to implement the Convention, which demonstrate its strong commitment to complying with all of the obligations under the Convention.

We also welcome the Memorandum of Understanding on the action plan for the elimination of forced labour (2018), concluded between the Government and the ILO, and encourage the Office to continue working in conjunction with the Government and provide all the necessary technical cooperation and assistance to continue achieving tangible progress in the country. We commend the ongoing efforts of the Government of Myanmar to implement the Myanmar Sustainable Development Plan (2018–2030), which is in line with the Sustainable Development Goals, including Goal 8.

We applaud the fact that, in close collaboration with the ILO, the Government is intensifying and furthering the labour legislation reform process, strengthening the culture of tripartite dialogue and empowering those most involved in the protection and promotion of labour rights. We encourage the Government to continue to work to achieve further significant progress towards the elimination of forced labour and we wish it all the best for the attainment of all objectives in this regard.

Government member, Belarus – Belarus is in favour of a universal and equitable approach to all countries and we would like to thank the delegation of Myanmar for the report that it has presented. We welcome its efforts to improve the situation of workers and improve the legislative system. We note the openness of Myanmar to cooperation with the ILO including developing and applying a national action plan. We support the Government’s activities to promote peace, pursue social dialogue, and meet its obligations under the principles of the ILO and we welcome the efforts of the Government and encourage the international community to further support Myanmar.

Government member, Switzerland – Switzerland supports the statement delivered by the European Union and would like to add a few points. Switzerland welcomes the range of measures taken by the Government in collaboration with the ILO, and the significant progress made in recent years regarding the elimination of forced labour. However, Switzerland deeply regrets that, despite the efforts made by the Government, cases of forced labour continue to occur in Myanmar.

The imposition of forced labour by the armed forces of Myanmar (Tatmadaw) on certain ethnic minorities is of great concern and must be strongly condemned. The measures taken by the Government to combat all forms of forced labour are positive, but efforts must be continued and strengthened in order to eliminate the use of forced labour in all regions of Myanmar. To this end, the Swiss delegation encourages the Government to continue its training and awareness-raising activities as well as its collaboration with the ILO.

In addition, the effective implementation of legislation and its strict application are vital elements in comprehensive action against forced labour. Thorough investigations must be conducted, and criminal offences must incur penalties that are sufficiently dissuasive and are strictly applied to the perpetrators in all cases. Switzerland therefore invites the Government of Myanmar to take the necessary measures to ensure the strict application of the national legislation.

Lastly, Switzerland invites the Government of Myanmar to ratify the Abolition of Forced Labour Convention, 1957 (No. 105), and the Protocol of 2014 to the Forced Labour Convention, 1930. Switzerland will continue to support ILO programmes in Myanmar.

Government member, Russian Federation – First of all, we would like to express our gratitude to the Government of Myanmar for the detailed explanations that it has provided today on measures that have been taken to meet the obligations under the Convention. We have seen from the report that the Government is doing considerable work in close cooperation with the ILO. In Myanmar efforts are being made to carry out democratic reforms. One of the important areas is ensuring the protection of workers’ rights and despite the existing difficulties, there is consistent work taking place in order to provide guarantees against forced labour. We particularly note the steps that have been made in order to implement the country programme to further decent work which was signed in September 2018 and we also note the reforms that have been made to the labour legislation.

We welcome the contribution of the ILO and its close cooperation with the Government of Myanmar. We also welcome the development with the social partners of a new plan of action to create a national mechanism for complaints. All of these measures, taken together, have already had a positive effect in our view. The number of cases of forced labour have been reduced and are continuing to fall. We hope that this trend continues.

We call on the ILO and the national community as a whole to continue its cooperation with the Government of Myanmar to ensure full fulfilment of the obligations of the country under this Convention.

Government representative – We have listened to all interventions very carefully. The Myanmar delegation will be taking those views, advice and concerns back to Myanmar for due consideration, with a view to achieving better compliance with the Convention. I would like to state again that the establishment of the National Complaints Mechanism under the Decent Work Country Programme is at the final stage for approval. The consent of all ministries, including the Ministry of Defence, for the establishment has already been secured. We also have the interim procedures for continuously receiving complaints made by any individual and any organization. We will continue close cooperation with the ILO in this regard.

As we mentioned in our introductory remarks, we indeed need a Constitution which is in line with the democratic norms. The Joint Parliamentary Committee was formed in order to amend the Constitution. The Committee has met almost 20 times so far since its inception in February this year. As we mentioned earlier, constitutional constraints are among the challenges we are facing, therefore, the current Government set amending the Constitution as the highest priority for the country. We are making our effort to transform the country into a democratic federal union. As the State Counsellor has stressed, we will pursue in an evolutionary way, not a revolutionary way. Everyone in Myanmar agreed that we want to live in a democratic federal union, not under an authoritarian regime. The constructive cooperation from the international community is indeed needed for keeping Myanmar on the right track on its democratization. Therefore, we take all allegations of violations of forced labour seriously. We are willing and able to address such issues. The Government is fully committed to take legal action against perpetrators if there is credible evidence of any human rights violation, including forced labour.

Some speakers made reference to the report of the HRC fact-finding mission. With regard to the fact-finding mission, our position is clear. Myanmar has categorically objected to the fact-finding mission since its establishment. We also reject its narrative-based report. However, we take all allegations, including those contained in the fact-finding mission report seriously. The Government of Myanmar has repeatedly stated that it will not condone human rights violations and will take action against perpetrators according to the law if the allegations are supported by sufficient evidence. Therefore, the Government of Myanmar has established an independent commission of inquiry to investigate all allegations of human rights violations following the ARSA terrorist attack in August 2017 in northern Rakhine. The mandate of the commission is to seek accountability and reconciliation. The commission is carrying out its mandate with independence, impartiality and objectivity. The independent commission of inquiry will investigate allegations of human rights violations based on hard evidence. Therefore, it will gather all information and analyse evidence by setting up a subcommittee. It is seeking technical support of external experts in such areas as information and communication, legal, forensics and criminal investigation. Each member of the commission will also appoint their own supporting staff and experts. The commission has publicly invited submissions on the allegations of human rights violations. The commission has received over 40 submissions concerning allegations of human rights abuses. The commission is also requesting access to the refugee camps in Cox’s Bazar in Bangladesh. We urge the Government of Bangladesh to facilitate the commission’s visit to the camps to meet with the alleged victims of abuse. The commission’s work will be evidence based. Therefore, the international community should support the work of the commission. Our doors are open for all constructive complaints. Complaints can be made in many channels, through existing ones, social media, the national human rights commission, the President’s Office and Parliament, to name a few. We would like to reconfirm our commitment for the elimination of forced labour. In this regard, we will continue our cooperation with the ILO and partners. Therefore, we would like to request all our partners to extend assistance and constructive cooperation to the Government’s efforts for the elimination of forced labour.

Worker members – Regrettably, it appears that the international community was too quick to claim a victory in the eradication of forced labour in Myanmar. While steps have been taken, the still pervasive nature of forced labour remains a serious cause for concern, especially given the involvement of state actors. This case merits rigorous follow-up by the ILO and the international community. We again express our deep concern regarding the lapse of the Supplementary Understanding while there is no other credible mechanism in its place. Now is not the time to lose all independent oversight over the exaction of forced labour in the country.

With regard to the situation of the Rohingya, this matter requires urgent attention and genuine leadership. Forced labour will continue so long as such a large population remains in a highly vulnerable situation – as undocumented citizens in their own country. Over 700,000 now live over the border in Bangladesh in squalid camps with no short-term prospects of a return home under conditions that guarantee their safety and security. Their forcible eviction from Myanmar has created a human rights crisis, including extreme vulnerability to human trafficking given their desperate situation. Those who are internally displaced also face a high risk of gross exploitation by the army and human traffickers, particularly in natural resource extraction.

Of course, our concerns with regard to forced labour do not end there. As we have heard, many others, including workers in other ethnic areas, face forced labour by the military or private individuals, including in agriculture, fishing and mining. Indeed, the reports of forced labour and other human rights violations in the mining of precious gems is particularly bleak, including addicting workers to powerful opiates in order to prevent them from leaving their exploitation.

The use of forced labour as punishment in prisons, in particular for private gain, is a serious concern and must be stopped immediately. Imprisoning of dissidents for the exercise of the basic freedoms must also end. I would also echo the concerns raised by the Workers’ delegate from Myanmar about the poor situation with regard to freedom of association both in law and in practice. As the Committee of Experts has explained, and this Committee has echoed, there is a direct link between the absence of freedom of association and the exaction of forced labour. We are deeply troubled at the direction of the Government with regard to freedom of association, as we explained in this Committee just last year, and worry that the Government’s hostility to workers’ organizations will expose workers to greater risk for forced labour. And we have also heard that land dispossession has created serious vulnerabilities of exposure to forced labour.

It is our fear that Myanmar may again be a regular case in this Committee if things continue as they are going. We therefore strongly urge the Government of Myanmar to respect the conclusions of this Committee and to implement them as soon as possible. We also believe that a direct contacts mission should be sent to Myanmar to follow up this Committee’s conclusions and report back to this Committee next year. We also strongly encourage the ILO secretariat and the Liaison Office to continue to work intensively with the Government to address these very serious violations, and to continue reporting to the Governing Body.

Employer members – I think, and what we have heard also from many governments, is a recognition that Myanmar has come from, going back many, many years, a place of globally acknowledged repression and oppression and in recent years has emerged into what you call a sunlight of democracy, but it is still emerging. If you could use the analogy of a chrysalis turning into a butterfly, we are a long way yet from being the butterfly, but it is hitting in the direction that ultimately I think the world will recognize.

That said, and I do not think that anybody would say otherwise, there are still too many things that are not going right. The instances of, particularly as the Committee of Experts have noted, the instances of recruitment into the armed services, remain the core and most evidenced aspect of the concerns that this Committee has raised, and I note that the Government has said that it will act on matters with credible evidence. I think that at least in the case of the armed services, it is a well-documented set of processes and that pretty much every individual has a set of documents. So that much we ask the Government to acknowledge their own accountability and to continue to do what they say they are already doing.

What remains though, is those areas outside of the military which either are not documented, and we have heard a number of anecdotal, in part, and partially evidently based issues around labour in other areas such as agriculture and the like. I would note that much of what has been there is outside the country, not outside the responsibility of the country but outside the physical boundaries of the country, and of course that has its own set of problems.

So one of the things I think that the Employers would say is that this is not just a problem for Myanmar, because when these issues occur outside, even though they are occurring to the citizens of Myanmar, they are occurring within, and within sight of or within the jurisdictions of others. Therefore I call on everybody, especially those in close proximity to Myanmar, to play their part too in identifying, suppressing or otherwise assisting in the elimination of these sorts of practices. Fishing in the seas outside Myanmar for instance is a lot of other people’s responsibility. So everybody has a part to play here and we call upon everybody to play their part.

The other thing in relation to the scope of this exercise, and I mentioned just before that the military appears to be the main forces and certainly the most evidenced, but it comes back down to, as we move forward, is making sure that when these things are addressed and the penalties are being considered, that they are approached in a balanced and fair manner. And we heard little bits of evidence to suggest that, or concerns that the punishment for military members perpetrating the forced labour is at a pretty low level at a disciplinary rather than punitive or penalized level, whereas there is evidence that for instance, civilians involved in the same sorts of activities have suffered penalties including significant terms of imprisonment. There is an evidence based concern about a lack of balance in that, and the Employers would call upon the Government to ensure that whatever regime and institutes for the dissuasive punishment of trafficking and forced labour is balanced and fair across the entire economy without restriction.

The one thing that we think and we have heard is that to address forced labour requires a means for it to be identified in that, the single most effective mechanism that we have heard about is the development of the national complaints mechanism, and I say here too that we talk about it in the singular, but we have heard from the Government that the proposed mechanism is in fact a multifaceted set of doors through which anyone can enter and lay their concerns out.

The creation and completion of that process is of the upmost priority, and we note that the Government has said that the action plan is going before cabinet, the action plan is the vehicle through which the rest of the complaints process will be put forward. That is in our view the highest possible priority. Aligned with that, is the need to ensure that the relevant legislation in the country is also aligned. We heard that the constitution is out of step with some of the other initiatives that are being taken. So that the alignment of internal legislation and the Constitution is part of that priority, but the headline if you like, the face of the priority, is the creation of that complaints mechanism.

To do that, we urge the Government of Myanmar to continue and strengthen its relationship with the likes of the ILO, who, as everyone has admitted, assisted in a very great way over the last few years. The existence of the Liaison Office both in the past and the present, are acknowledged as being hugely beneficial. Those mechanisms can still be further strengthened, as can the internal capacities of the Employers, Workers and Government and organs inside the Government that deal with these issues. So we urge that the cooperative process involved in the ILO and the social partners focus on that as their main issue.

So just with that, we would summarize I guess the sorts of things we would recommend. First, we praise the Government for its progress; we remain concerned at the issues that remain; we acknowledge that those issues are becoming more focused in certain areas, which is evidence that other areas are being managed as time goes on. We urge them to continue that process. We recommend that the Government take immediate actions to reform the national legislative programs including the introduction of the action plan on the alignment with the constitution. We urge the Government to regularly report, not just to the ILO through any of their reporting mechanisms that exist, but to establish transparent reporting mechanisms within its own country, so that all citizens can see that these issues are being made, or complaints are being made, complaints are being dealt with, and then the entire country can see and trust the process, which I think is also an extremely important part of any democracy. And lately we recommend that the Government continues to work in close collaboration with its social partners to establish a permanent and effective national complaints mechanism for handling forced labour complaints in an effective and dissuasive penalty regime.

Conclusions of the Committee

The Committee took note of the oral information provided by the Government representative and the discussion that followed.

The Committee took note of the Government’s stated efforts in eliminating forced labour, welcomed these efforts, and urged the Government to continue them. However, the Committee expressed concern over the persistent use of forced labour.

Taking into account the discussion of the case, the Committee urges the Government to:

- take all necessary measures to ensure that, in practice, forced labour is no longer imposed by the military or civilian authorities;

- strictly enforce the Ward or Village Tract Administration Act of 2012 and the Penal Code to assure that those responsible for perpetrating forced labour be effectively investigated and prosecuted and receive and serve sentences that are commensurate with the crime in all cases;

- ensure that the victims of forced labour have access to effective remedies and comprehensive victim support without fear of retaliation;

- refrain from imposing any punishment against those who have spoken out against or reported incidents of forced labour;

- increase the visibility of awareness-building and capacity-building activities for the general public and administrative authorities to deter the use of forced labour;

- provide detailed information on the progress made in the Decent Work Country Programme; and finally

- intensify its cooperation with the ILO through the development of a time-bound action plan for the establishment of, and transition to, an effective complaints handling procedure.

In this regard, the Committee encourages the Government to avail itself of ILO technical assistance to address these recommendations.

Government representative – We take note of the recommendations made by the Committee. I would like to express our appreciation to the International Labour Organization, and the countries support for Myanmar with its endeavours to eliminate forced labour. I would like to reaffirm our commitment for the elimination of forced labour. I would like to request the ILO and the member States to continue their assistance to Myanmar for the elimination of forced labour.

Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

A. RECORD OF THE DISCUSSION IN THE COMMITTEE ON THE APPLICATION OF STANDARDS

A Government representative of Myanmar recalled that the 310th Session of the Governing Body had welcomed the positive developments in Myanmar as well as the extension of the Supplementary Understanding trial period for a further 12 months. He explained that it had been extended during the visit of the Executive Director’s mission in February 2011. He stressed that it was important to highlight that the ILO mission was the only foreign mission that the authorities had received during the period in which the new Parliament was in session, with a view to extending the Supplementary Understanding and to seeking advice on the draft legislation on workers’ organizations. During this mission, the members had met the Minister of Labour, the Government Working Group for the Elimination of Forced Labour, the Government Working Group for Anti-Human Trafficking and the Government Human Rights Body. These discussions had brought the mutual understanding and cooperation between Myanmar and the ILO to another level. Receiving the mission reflected the political will and commitment of the Government to the cooperation with the ILO.

He referred, as one of the concrete measures to implement Convention No. 29, to the ongoing preparation of a draft legislation to amend the Village Act and the Towns Act of 1907 by a drafting committee headed by the Union Minister of Home Affairs. The draft law explicitly prohibited forced labour and included exceptions in the case of natural disasters. This draft law would be submitted to Pyidaugsu Hluttaw (Parliament). Supplementing orders, directives and procedures would be issued as necessary. He informed that the drafting of a law for the formation of workers’ organizations was also under way in close cooperation with the ILO. He believed the draft law would be promulgated by the Parliament in the very near future. Turning to the Constitution of 2008, he indicated that since it had been approved by 92.48 per cent of the people’s votes, it was impossible, at this juncture, to amend its provisions. However, the draft legislation would provide for provisions effectively outlawing forced labour practices, thereby bringing the legal framework in line with Convention No. 29.

His Government believed that advocacy played a very important role in eliminating forced labour in the country. In this regard, he stated that a total of ten regional workshops had been held to date since 2008. He stressed that they had been held not only in mainland Myanmar, but also in ethnic minority regions like Kachirt, Karen, Shan and Chin States. Civil and military authorities and officials from relevant local government ministries had also taken part in these workshops. Since May 2010, a total of 35 training and awareness-raising activities for various stakeholders had been successfully held.

These activities had generated better awareness on the issue among the public and had resulted in an increase in the number of complaints. The Liaison Officer had indicated in his report that this trend should not be construed as an increase in the use of forced labour. In order to cope with the increased workload, it had been made clear to the Liaison Officer that he had the liberty to employ local staff.

As part of the proactive approach, the budget to cover labour costs in government projects had been allocated to all ministries. The allocated funds were spent for the purpose of minimizing the risk of unpaid labour in government projects.

He referred to the complaints on under-age recruitment had been dealt with, on a priority basis, by the Government Working Group and its respective committees. Acting on the complaints received through the ILO complaints mechanism, a total of 120 recruits had been allowed to resign from military service and 13 had been released from prisons. As regards enforcement measures against under-age recruitment, five military officers and five other ranks had been dismissed and sentenced to prison terms. Disciplinary action had also been taken against 20 officers and 110 other ranks in the military. It was evident that action would be taken against any perpetrator, civilian or military on forced labour and under-age recruitment. He added that some complaints had been filed directly to the military authorities and they had been handled with the same priority and measures taken. The local military authorities had also settled 22 land disputes.

His Government believed that progress had been achieved on the observance of Convention No. 29, which had been made possible in close cooperation with the ILO, in particular the Liaison Officer. He highlighted that Myanmar never lost sight of the goal of eliminating any form of forced labour practice, even at a time of important political transition in the country. He indicated that the Government would strengthen its cooperation with the ILO to achieve this shared goal.

The Employer members noted the political changes since the last time this Committee examined the case. They hoped that the absence of a military-controlled government and the new parliament, which included representatives of ethnic parties and parties not aligned to the previous Government, would lead to an environment in which the Government could finally put an end to the scourge of forced labour. Since last year, small positive steps had been undertaken consisting of the release of Aung San Suu Kyi, the opening up of the censorship rules, the Presidential advisory committees on economic, legal and general policy and the acceptance of the principle of finance and planning for public works. Fundamentally, however, the situation remained unchanged given that the Government still had not implemented the recommendations of the 1998 Commission of Inquiry. It was particularly disappointing that the recent change in government had not resulted in perceptible change that would have suggested that the tactics of stall and delay of the prior Government belonged to the past. The Employer members had expected a longer statement by the Government of Myanmar providing more concrete information, in particular on the legislative amendment.

Unconditional, proactive, political will need to be demonstrated through concrete actions, the timing and urgency of which was as important as the actions themselves. In order to demonstrate that the elimination of forced labour was an attainable reality, the Employer members urged that the Government: (1) approve visas for additional ILO staff; (2) allow the ILO to help it address forced labour in the military; and (3) open a broader discussion and plan of action with the ILO on worker rights. While welcoming the activities of the ILO Liaison Office, the workload had increased and the Office was understaffed due to the rise in the number of complaints. Yet, the Government continued to resist approving visas to enhance the capacity of the Liaison Office. Substantial problems with respect to the elimination of forced labour both in law and practice persisted. There were ongoing concerns relating to the intimidation, harassment and imprisonment of complainants. The military recruitment of minors was presumptively forced labour and had to be included under the Liaison Officer’s mandate and the complaints mechanism. The most recent submissions of the International Trade Union Confederation (ITUC) and the Federation of Trade Unions–Kawthoolei (FTUK) containing 94 Order letters from military and other authorities requisitioning compulsory and uncompensated compulsory labour from January 2009 to June 2010 as well as last year’s submission to the Committee of Experts appeared to constitute conclusive evidence of the continued systematic imposition of forced labour by military and civil authorities throughout the country.

Through its Working Group for the Elimination of Forced Labour, the Government of Myanmar continued to respond in a reasonably timely manner to complaints that had been lodged under the Supplementary Understanding. The Working Group had responded positively to proposals to broaden the scope of training and awareness-raising activities. The Government reported that the Working Group had completed 80 per cent of the amendments to the Village Act and Towns Act in order to bring it into conformity with Convention No. 29. However, the Employer members asked the Government to clarify their statement which seemed to indicate that there was a conflict between these amendments and the new Constitution. He also asked when the legislative amendments would become effective. The Employer members underlined the importance of a joint Working Group meeting with the Government finance and planning ministries to discuss budgeting and financial allocation. Sound macroeconomic policies and budgeting was needed to ensure sufficient funds to pay wages. The Employer members asked the Government as to the date of this meeting and whether the ILO Liaison Officer could provide input on the draft agenda for the meeting.

The Employer members remained concerned with the difficulties to get satisfactory conclusions regarding complaints that alleged forced labour by the military, as well as with the continued alleged harassment of complainants, particularly farmers, facilitators, their legal counsels and relatives. While welcoming the publication of a simply worded brochure to explain the law, the Supplementary Understanding and the procedure to file a complaint in one language, the Employer members asked when this brochure would be available in all languages. There still appeared to be a total absence of prosecutions against military officers in connection with forced labour, which suggested a lack of real commitment to eliminate forced labour. Although 20 persons imprisoned for activities which were related to procedures under the Supplementary Understanding had been released, four persons remained in prison and two lawyers who were active supporters of the Supplementary Understanding procedures lost their legal licenses after being released from prison.

The progress so far was limited. Fundamentally, the Employer members still observed a lack of fundamental civil liberties, in particular: the right to freedom and security of the person, freedom of opinion and expression, freedom of assembly and association, the right to a fair trial by an independent and impartial tribunal, and protection of private property. A climate of fear and intimidation of citizens persisted. These were the root causes of forced labour, but also for trafficking and recruitment of minors in the military, child labour, child soldiers, discrimination and the absence of freedom of association. The Employer members recalled the three areas identified by the Committee of Experts in this year and last year’s observation in which measures should be taken by the Government to implement the recommendations of the Commission of Inquiry. The number of complaints was still low indicating that citizens may not have adequate access nor feel free to file complaints. The Employer members argued that forced labour in Myanmar had to be addressed holistically. Therefore, the Government Working Group should also receive complaints of trafficking in humans for forced labour and not refer those cases to the Ministry of Home Affairs, as had been done so far.

The new Constitution contained specific articles on freedom of association, freedom of expression and the right to organize, but the article banning the use of forced labour contained qualifications which raised questions of its conformity with Convention No. 29. The ILO tripartite constituency unanimously had called on the Government of Myanmar to apply the provisions of Convention No. 29 both in law and in practice and to put an end to the intolerable climate of impunity. The Employer members urged the Government once and for all to provide full and detailed information to the Committee as a clear and unequivocal sign of willingness to cooperate genuinely with the supervisory bodies. Transparency and collaboration with the Liaison Officer and the Committee of Experts was essential to addressing the issues at stake. The Supplementary Understanding in no way relieved the Government of its obligations to abolish forced labour. They urged the Government to make substantial tangible improvements in its national legislation and to provide sufficient funds so that paid labour replace forced labour both in civil and military administration to demonstrate the unambiguous willingness of the Government against forced labour.

The Worker members expressed their regret that, although there had been a number of political changes in the country in November 2010, nothing had altered in Burma/Myanmar as far as the forced labour situation was concerned. In its annual report, the ITUC had stated that there were more instances of forced labour than ever in virtually all the country’s states and divisions. The forced labour was directly linked to the army (portering, construction and compulsory enlistment of children) or, more generally, to agriculture, construction, road maintenance and other infrastructural work. The reports from the Federation of Trade Unions of Burma (FTUB) and the FTUK added that, to avoid possible complaints, some military personnel signed their forced labour orders under a false name or simply refused to sign. The increase in the number of complaints concerning forced labour, which had also been noted by the ILO Liaison Officer, often coincided with the confiscation of agricultural land. Some crops were actually imposed on the growers, and the profit from the higher land rental charges went to the military, other commercial interests or big private enterprises. The number of complainants who were still in prison was unacceptable.

The Worker members stressed that the United Nations Special Rapporteur on the situation of human rights in Myanmar had stated that the political, military and judicial authorities at every level were implicated in the violation of human rights, including the imposition of forced labour. The growing number of displaced persons and migrants in Thailand, Malaysia and other countries was further proof of the extent of forced labour. As to the follow-up to the comments of the Committee of Experts, the Worker members noted that, although the Village Act and the Towns Act were supposedly being revised, there was no change in the most recent Constitution, article 359 of which authorized “labour imposed by the State in the interests of the people, in accordance with the law”. Moreover, although the extent of forced labour by the civil authorities was said to have declined to a certain extent, its use by the military throughout the country was still a matter of concern. Furthermore, although a simple leaflet had been prepared explaining the law as it related to forced labour and the possibility of appealing against it, it had not been translated into all the local languages. Finally, there was still no budget allocation for replacing forced labour, and known instances of its imposition were still not punished but treated instead as mere administrative or disciplinary concerns. To sum up, they deplored the fact that the Government had not yet implemented the recommendations adopted by the Commission of Inquiry 13 years ago, and they therefore felt that it was time to revive the ILO’s initiatives and activities under the resolution that was adopted in 2000.

The Government member of Hungary, speaking on behalf of the Governments of Member States of the European Union (EU) attending the Conference, as well as the Candidate Countries (Turkey, Croatia, The former Yugoslav Republic of Macedonia, Montenegro and Iceland), potential Candidate Countries (Albania, Bosnia and Herzegovina, and Serbia), Ukraine and the Republic of Moldova, expressed deep concern about the critical situation of human rights in Burma/Myanmar and regretted that the elections in 2010 had not been free or fair and that the authorities were yet to demonstrate substantive evidence of positive change. She indicated that the EU was nevertheless willing to respond to progress in Burma/Myanmar. In this connection, she welcomed the prolongation of the Supplementary Understanding in February 2011. She also acknowledged the efforts made by the Government, particularly in the field of awareness raising, cooperation in the functioning of the complaints mechanism and in the release of under-age recruits from the military. She, however, indicated that despite these positive developments, the recommendations of the Commission of Inquiry were not yet fully implemented, and that the use of forced labour remained widespread. She expressed the hope that as the review of the Village Act and the Towns Act was in progress, these acts would be amended or repealed as soon as possible in order to bring the legislation into full conformity with the Convention. She also urged the Government to amend section 359 of Chapter VIII of the Constitution, which exempted from the prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public”.

As regards forced and compulsory labour which continued to be exacted from local villagers by military and civil authorities throughout the country, she urged the Government to continue and expand its awareness-raising activities to ensure the prohibition of forced labour is widely known and applied in practice, and to ensure the strict enforcement of penalties for the exaction of forced labour under the Penal Code against civil and military authorities. In relation to the commitment expressed by the Government to establish a democratic government, she urged the Government to release unconditionally all those detained for their political convictions, to demonstrate respect for human rights and fundamental freedoms, and to establish an inclusive dialogue with all opposition and ethnic groups, including Aung San Suu Kyi and the National League for Democracy.

Turning to the UN mechanisms, she urged the Government to comply, as a matter of priority, with Resolution 16/24 of the UN Human Rights Council to establish an independent investigation into reported serious human rights violations, including the use of forced labour. Reiterating that involving children in armed conflicts is one of the worst forms of child labour, she encouraged the Government to cooperate with the UN on the protection of children from recruitment and use by armed forces, and on the full rehabilitation and reintegration of children affected by armed conflicts. Particular concern was also raised about the ongoing conflicts in ethnic areas, including Shan and Karen States and, in this connection, she urged the authorities to exercise constraint and look to a political solution and national reconciliation. She regretted that despite the request by Mr Vijay Nambiar, the UN Secretary-General’s Special Adviser to Myanmar, the Special Rapporteur had not been permitted to visit the country and, therefore, called on the Government to provide an opportunity for the Special Rapporteur at the earliest possible date to make a first-hand assessment of the performance of the new administration.

To resolve the serious and long-standing problem of forced labour, she indicated that the EU urged the Government to take all the long overdue steps to achieve compliance with the Convention. She expressed the appreciation for the tireless work of the Liaison Officer in assisting the authorities concerned to implement fully Convention No. 29, and encouraged them to further strengthen their cooperation with the Liaison Officer.

The Worker member of Sweden presented a case of land confiscation and forced labour. She explained that since December 2009, a number of companies with ties to the military regime confiscated the farmland of the local farmers of Sis-sa Yan village of the Kanma township. The farmers sent petitions to the authorities to look into the case but received no reply. On the contrary, they were attacked and detained by officials from the military-owned companies and local authorities. The workers from the companies that confiscated the farmland started to build a motorway through the farmland of Sis-sa Yan village as well as offices for a planned factory. The representatives of the farmers then lodged a complaint to the Kanma criminal court but it was rejected. Several of the farmers who had lodged complaints were illegally detained and prevented from seeing their families or getting access to medical treatment. They were also charged by the authorities for fabricated crimes. The court in fact handed down heavy sentences of ten to 12 years of jail to five of the farmers.

The Government member of New Zealand speaking also on behalf of the Government of Australia, paid tribute to the continued dedication of the ILO Liaison Officer and his team in promoting the observance of Convention No. 29 by the Government of Myanmar. The increased activity under the complaints mechanism was a positive trend and indicated that the proactive awareness-raising approach taken by the Liaison Officer was working and demonstrated the growing confidence of the people of Myanmar in exercising their rights. The speaker noted the recent encouraging statements made by the Government of Myanmar as regards the need for good governance and accountability in national policies and the Government’s commitment to the elimination of forced labour. Practical steps undertaken included the renewal of the Supplementary Understanding earlier this year, as well as the agreement to broaden the scope of awareness-raising activities, including the publication of a brochure on citizens’ rights under the Supplementary Understanding in both the Myanmar and Shan languages. While positive, these encouraging steps highlighted the need for sustained, proactive action by the Government of Myanmar, in partnership with the ILO Liaison Office, to address and to eliminate forced labour. Incremental progress however did not suffice and forced labour by the military remained a persistent problem. It was key to address the weakness of macroeconomic governance and problems caused by the application of the economic selfsufficiency policy by the military which were the root causes of forced labour. She urged the Government to seek the technical assistance of the ILO in improving its policy frameworks and to ensure direct communication on military forced labour issues between the Government Working Group, the ILO and relevant authorities. In order for the Liaison Office to fulfil its mandate, appropriate resourcing was imperative and the Government was called on to facilitate the visa required for a new staff member to start working immediately. True and meaningful progress on the issue of forced labour could only be made if the very grave issue of incarceration and reprisal for association with the complaints mechanism was addressed. She welcomed the unconditional release of Aung San Suu Kyi in November 2010, but called on the Government to immediately release all political prisoners, including those incarcerated for their association with the ILO complaints mechanism.

The Worker member of the Philippines stated that various forms of human rights violations, including forced labour and extortion, had been widely practiced since early January 2011 by the military troops and the Border Guard Force in Karen State with a view to forcing the villagers to transport rations and military supplies necessary to set up more military positions and to launch military offensives in the hill region to control the whole area. Currently, the people of Toungoo district and Kler Lwee Htu were victims of forced labour because the area was close to the Nay Pyi Daw capital. He cited examples of cases of forced labour exacted by the military and the Border Guard Force in villages such as Shwe O, Mae Pary Kee, Shan Zee Bo, Tan Ta Bin, Tha Pyi Nyut and Klor Mee Der in January 2011. He stated that forced labour continued in most states of the country and that only the recognition of freedom of association, the liberation of labour activists and other prisoners of conscience and the change of Constitution could lead to effective democracy and to the eradication of forced labour in the country. He called on the Government to adopt immediate measures to stop forced labour and other human rights crimes, and also on other governments, employers and international institutions to adopt strict policies for ensuring the promotion of democracy, rule of law and social justice in the country. He finally called on the ILO to strengthen its activities in collaboration with other organizations in this endeavour.

The Government member of the United States commended the unwavering commitment and excellent work of the ILO, in particular the Liaison Officer and his team, who often faced difficult circumstances in carrying out their critical mandate. They had proven time and again the value of the ILO’s presence in Burma, and she hoped that the Liaison Office would soon be sufficiently strengthened to respond to its ever increasing workload. She noted several changes in Burma since last year, and in particular the fact that the Supplementary Understanding had been extended for an additional year; the number of complaints lodged under this Supplementary Understanding had continued to increase; significant awareness-raising and training activities had been undertaken, including progress in translating the information brochure on forced labour into local languages; and draft legislation was apparently being prepared. While her Government welcomed these developments, it encouraged the Government to continue and increase its efforts in these areas. Notwithstanding these positive steps, she also insisted on the fact that forced labour was still prevalent in Burma and that the Government had not yet implemented the recommendations of the Commission of Inquiry. Recalling the clear and unequivocal recommendations of the Commission of Inquiry, she noted that much remained to be done on an urgent basis. The Government had an obligation to eliminate completely and permanently the use of forced labour by developing and enforcing strong laws and regulations and by effectively promoting awareness of fundamental worker rights among the entire population. The Government should therefore avail itself of the ILO’s technical assistance to achieve the necessary results. She noted that the ILO could provide important advice to the Government with regard to budgeting adequate means for the replacement of forced or unpaid labour. Finally, she reiterated the long-standing commitment of her Government to stand steadfastly with the Burmese people who aspire for a peaceful, prosperous and democratic nation that respects human rights and the rule of law. She hoped that recent developments would result in a genuine, open and inclusive dialogue leading to a lasting solution to the problem of forced labour.

An observer representing the Federation of Trade Unions of Burma (FTUB) explained that while providing training in Burma on basic trade union rights and democratic principles, he had met numerous people who had been forced to work as military porters, carrying ammunition and food. On 30 May 2011, ten people were conscripted as military porters by the Light Infantry Battalion No. 563 in Three Pagodas Pass near the Thai–Burma border. The FTUK reported that in May 2011, over 4,000 people were forced into labour for the Border Guard Force, the junta’s Karen proxy army. These were not one-time instances, but formed part of a persistent pattern of violations. According to the ILO, 630 cases of child soldiers were reported in 2010 and 157 victims of under-age recruitment were returned home. Despite ILO efforts, child soldier conscription still continued and political will at the highest level was needed to change the practice on the ground. The release of children had encouraged the families of conscripted children to reach out to the ILO, although fear of retaliation remained. Increased land confiscation by the military, either for new garrisons or business ventures, made people lose their income and caused confrontations. Regardless of the declarations of a successful representative election and changes in the political landscape, the actual situation on the ground remained the same. The speaker had personally witnessed that no elections had been held in 155 villages of Karen state and the people were denied the right to vote. Many areas in Mon state, Shan state (ten townships), Kachin state (63 village tracts) and Kayah state were denied the right to vote. The junta itself had declared that the recent elections did not cover the whole country. Although some might welcome the referendum, the elections, the Constitution and the new Government, the denial of citizens, prisoners, monks and Aung San Suu Kyi of their right to vote and to be elected should be considered by the world as a violation of international electoral standards. Forced labour continued to take place in the areas where no elections were held and more efforts from the ILO Liaison Office were needed in these areas. The ILO should discuss with other UN agencies that participated in the 19 training sessions to help the ILO, thus widening the scope of its activities. The recommendations made by the Commission of Inquiry had not been implemented, in particular the following measures: issuing specific and concrete instructions to the civilian and military authorities; ensuring that the prohibition of forced labour is given wide publicity; providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and ensuring the enforcement of the prohibition of forced labour. Although positive, the Supplementary Understanding was not sufficient to meet the recommendations of the Commission of Inquiry. The junta should not be allowed to hide behind this Understanding, but should implement the recommendations of the Commission of Inquiry or face the consequences at the Governing Body meeting in November 2011.

The Government member of Japan expressed his Government’s appreciation for the ILO’s work to improve the situation of forced labour through its active engagement on the ground, as a result of which some positive developments had been seen. His Government welcomed the resolve of the Government of Myanmar to further advance the elimination of forced labour in cooperation with the ILO under the Supplementary Understanding, as well as its commitment to amend the provisions of the Village Act and the Towns Act of 1907 to achieve compliance with Convention No. 29, the draft of which was expected to be submitted to Parliament before the end of the year. The Government was urged to accept ILO technical assistance on this matter. His Government welcomed that the distribution of simply worded brochures explaining the complaints mechanism had been effective, and that the Government had recently agreed that the brochures should be translated into other local languages. He noted the view of the Commission of Inquiry that a significant cause of the use of forced labour lay in the weakness of macroeconomic governance and policy application, particularly with respect to budgeting and corresponding financial allocations. He expressed the hope in this regard that the Government and the ILO would hold close consultations, including joint discussions with appropriate finance and planning ministries as suggested. While progress could be observed with regard to under-age recruitment into the armed forces, his Government was concerned about the continued use of forced labour by the military and persons who continued to be detained due to their association with the complaints mechanism. He urged the Government to take serious measures to ensure that persons were in no way disadvantaged based on this association. Finally, he indicated that as awareness of the complaints mechanism grew, an increasing number of complaints were being received. In this regard, he urged the Government to respond swiftly and positively to the requests of the ILO to meet the increasing workload of the Liaison Office, such as the issuance of visas for additional international staff.

The Worker member of Italy called on the Office to work on the recommendation of the Commission of Inquiry that the Government of Burma should make the necessary budget allocations so that workers are freely contracted and adequately remunerated. This crucial recommendation could be fulfilled if the Burmese government had the political will to avoid misuse of foreign direct investment; to resolve the problem of tax extortion, lack of accountability, corruption and illicit capital export as denounced by the United Nations Development Programme; and to shift public resources from the defence sector to public works. In this regard, she denounced several initiatives to build military-related installations and import military equipment and recalled that, in November 2010, the United Nations Security Council had denounced shipments of nuclear technology and military equipment from North Korea to Burma.

She called for the recently confirmed European Union restrictive measures towards Burma to be accompanied by adequate monitoring procedures. Denouncing several recent business-related initiatives by European companies and pension funds, she called on the European Union and the relevant governments as well as companies to implement the new United Nations Guiding Principles on Business and Human Rights. She also called on companies investing in Burma to comply with the Guidelines for Multinational Enterprises and with the Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas adopted by the Organization of Economic Cooperation and Development (OECD). There should be no relaxation of economic sanctions until there is a genuine improvement in human rights and progress towards democratic change. The speaker called on the ILO Director-General for renewed action for a consistent implementation of the 2000 ILC resolution. She added that, in view of the persistence of the use of forced labour in the country, there was still the need for the ILO to implement the decision to prepare a request for an advisory opinion of the International Court of Justice on the violation of Convention No. 29.

The Government member of Singapore welcomed the renewal of the Supplementary Understanding between the Government of Myanmar and the ILO for another year, as well as the concrete steps taken by the Government towards raising awareness of the complaints mechanism on forced labour, introducing the Labour Organizations Act, and drafting a law to bring the Village Act and the Towns Act in line with the Convention as recommended by the Commission of Inquiry. The draft legislation was understood to be near completion and to be subsequently sent to Parliament for consideration. With reference to the recent report of the ILO Liaison Officer in Myanmar, the speaker further highlighted the efforts made by the Government as regards training and awareness-raising activities under the 2002 Understanding, for instance workshops held throughout the country including in several ethnic areas, the publication and wide distribution of the ILO’s brochure to explain the law, the Supplementary Understanding and the complaints mechanism, and the Government’s intention to translate the brochure into Shan language. He also welcomed the efforts made in the area of under-age recruitment of soldiers, such as the continued education of military personnel on the relevant law by the Ministry of Defence with ILO and UNICEF technical assistance, the discharge and release to their families of 174 persons recruited under age and the prison sentences imposed against military personnel (two officers and five of other ranks) for forced labour practices. Despite visible progress in respect of the use of forced labour by civilian authorities, there still appeared to be room for improvement on the use of forced labour by the military, in particular as regards the difficulty of reaching satisfactory conclusions on the relevant complaints. The speaker hoped that the Government would make stronger and sustained efforts to address the issue and encouraged the Government and the international community to continue in their constructive engagement for improving the lives of the people of Myanmar.

The Worker member of the Republic of Korea commented on the impact of energy development projects on forced labour. She indicated that there had been a noteworthy increase in foreign investment in the country’s energy sector. Korean trade unions, as well as human rights groups, had been following the situation as regards the Shwe Gas Project, a gas pipeline construction project in which foreign companies were involved as members of a consortium. She expressed disappointment at the fact that a complaint lodged in 2009 by trade unions and non-governmental organizations on the basis of violation – on several counts – of the OECD’s Guidelines for Multinational Enterprises by Korean enterprises had been dropped by Korean authorities without any serious investigation. Despite allegations of serious human rights and environment abuses, the request for suspension of the project was ignored and the project was now in its construction stage with continuation of forced labour and other forms of human rights abuses. She expressed concern at the fact that forced labour was directly connected even to corporate social responsibility projects conducted by companies involved in the energy development projects. She noted that the Burmese Army continued to rely on forced labour in connection with the Shwe Gas project, which demonstrated that the 2000 ILC resolution had not been fully implemented. She called on ILO member States and all constituents to fulfil their obligations under the resolution.

The Government member of Norway expressed deep concern about the human rights situation in Myanmar and, while noting the release of 47 political prisoners on 17 May 2011, requested the Government to release the remaining political prisoners. He welcomed the prolongation of the Supplementary Understanding, the cooperation between the ILO and the Government as regards the functioning of the complaints mechanism and the release of under-age recruits from the military, as well as the recently held training session for senior Government officials in the Chin state and the translation of the ILO forced labour brochure into Shan language. The speaker encouraged the Government to apply existing laws against forced labour and under-age recruitment, to introduce economic management and financial budgeting so as to prevent the use of forced labour and to proactively support the ILO in its efforts to eradicate forced labour. Noting the Government’s willingness to discuss better employment policies for the protection of workers’ rights, the speaker encouraged the ILO to take steps to provide capacity building in selected areas aimed at improving workers’ rights in Myanmar, and, in addition, to intensify work together with the Government on the Freedom of Association Act and to provide assistance so as to ensure that any future Labour Union Act meets the requirements of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

The Worker member of Japan noted that forced labour was a long standing and widespread problem in Burma, with prison inmates used by the army as porters or human minesweepers, victimization of ethnic minority groups and recruitment of child soldiers through trafficking and kidnapping. She recalled that the 2000 ILC resolution recommended to all member States to review their relations with the Government of Burma so as to ensure that the continued use of forced labour would not give it any advantage. However, this resolution had not been implemented properly. According to the report of the Burmese National Planning and Economic Development Ministry, the accumulated pledged amount of foreign direct investment by endNovember 2010 had doubled – from 16 to 32 billion US dollars – in a six-month period. Most of this increase was attributed to investments in the oil and gas sector, with natural gas exports accounting for as much as 40 per cent of the country’s export income. Given that this type of economic activities helped the Burmese Government to maintain forced labour and oppression of the Burmese people, she urged the representatives of governments and employers of countries investing in or trading with Burma to review their relations with this country in order to help eradicate forced labour in accordance with the 2000 ILC resolution. Finally, she indicated that without a democratization process, there would be no real driving force for the elimination of forced labour. In this regard, she considered the formation of a “civilian” government to be no great stride towards democracy but indicated that an essential step would be the immediate release of the numerous political prisoners, including labour activists.

The Government member of the Russian Federation shared the conviction that the eradication of all forms of forced labour throughout the world was an absolute priority and welcomed the cooperation between the ILO and the Government of Myanmar in that field. In that regard, the renewal for another year of the Supplementary Understanding on the occasion of the visit of the ILO High-level Mission was a positive step. The examination by the Committee on the Application of Standards of compliance by Myanmar with Convention No. 29 was taking place only shortly after the holding of elections last October, which had resulted in a new Parliament. In that context, draft reforms of the labour legislation were being prepared. Those initiatives should be welcomed, particularly as changes relating to forced labour were envisaged. His Government hoped that the Government of Myanmar would continue the progress towards democracy.

Emphasis should also be placed on the efforts made and the enormous amount of work undertaken by the ILO Liaison Officer, particularly for the forwarding of complaints of forced labour to the competent authorities in Myanmar (especially the Ministry of Defence), which were reported to have resulted in those responsible being penalized. The initiatives to raise awareness of the complaints procedure among the population and to disseminate information brochures on forced labour were also useful and encouraging. It was to be hoped that the difficulties relating to the strengthening of the personnel in the ILO Liaison Office in Myanmar would be resolved rapidly. Finally, the Government expressed the conviction that the Government of Myanmar would continue to take the necessary measures to achieve the elimination of situations of forced labour. In that respect, the reinforcement of cooperation between the Government of Myanmar and the ILO was undoubtedly the most appropriate means of achieving that objective.

The Worker member of Indonesia drew the Committee’s attention to the continued practices of forced labour and violations of human rights in Myanmar and highlighted the growing number of undocumented migrant workers fleeing Myanmar for safety reasons and working in Thailand, Malaysia, India and others for low wages and in bad working conditions. This phenomenon had triggered social conflict, xenophobic practices, increasing exploitation and deepening poverty in the receiving countries and in the Asian region. The speaker urged the Government to supply information about the concrete efforts undertaken to meet the recommendation of the Commission of Inquiry to punish the perpetrators of forced labour.

Bearing in mind its interest in taking over the presidency of the Association of Southeast Asian Nations (ASEAN), the Government of Myanmar had not yet sufficiently proven that it was serious about the elimination of forced labour and transition to democracy. The ASEAN Member States should openly discuss Burma’s democracy and human rights problems and stop considering those matters as a Burmese domestic affair but rather regard them as a regional commitment. Rewarding Burma with the ASEAN presidency despite sham elections, numerous political prisoners, continuing forced labour practices, and lack of democracy and freedom of association, would be an embarrassment for the region. The speaker encouraged the ILO to work closely with the ASEAN Human Rights Committee using its mechanisms to speed up elimination of forced labour and monitor practices of multinational corporations originating from ASEAN and violating ILO Conventions.

The Government member of Thailand indicated that forced labour was a challenge of global concern and that it was therefore imperative for the international community to support Myanmar’s cooperative efforts in achieving the elimination of forced labour, particularly in view of the recent significant political developments. He felt encouraged by the ongoing cooperation between the Government of Myanmar and the ILO, hoping that the extension of the trial period of the Supplementary Understanding and the recent visit of an ILO High-level Mission to Myanmar would provide the impetus for further progress. The speaker urged the Myanmar authorities to continue pursuing the positive steps and to redouble their efforts towards achieving the recommendations of the Commission of Inquiry. There had been positive developments since the Governing Body in March 2011, such as the revision of the Village Act and the Towns Act adopted in 1907, which was now complete up to 80 per cent and should be submitted to Parliament by the end of 2011, and the drafting of legislation on workers’ organizations. He emphasized that ILO technical assistance in this process would be crucial and hoped to see additional resources allocated to the ILO Liaison Office in Myanmar.

The increased number of complaints received through the mechanism established by the Supplementary Understanding – which received a positive response from the Adjutant General’s Office in respect of under-age recruitment into the military – reflected the effectiveness of the awareness-raising workshops. The speaker also welcomed the decision of the Government Working Group to publish in local languages a brochure explaining the law, the Supplementary Understanding and the complaint procedure and to distribute it widely across the country. He expressed the hope that the continuous progress would lend credibility and add momentum to the process of democratization and national reconciliation. The political landscape in Myanmar and the cooperative international environment augured well for the elimination of forced labour. He pledged the support of Thailand in addressing this serious issue.

The Government member of Cuba reaffirmed her support for the principles set out in Convention No. 29 and welcomed the report which reflected the recent activities carried out by the Office and the Government of Myanmar and the progress made in the elimination of forced labour. The intervention by the Government representative of Myanmar reflected the most recent efforts made by his Government for the application of the Convention, with particular emphasis on the current process to bring national legislation into conformity with Convention No. 29. Recognizing that the results achieved were the product of international cooperation, she encouraged the continuation of technical cooperation, open and unconditional dialogue and analysis of the national situation and conditions, as the only way of contributing to the achievement of the objectives set out in the Convention.

The Worker member of the United States reiterated the concerns expressed in previous sittings and strongly condemned that according to credible reports the brutal and dehumanizing practice of forced labour, including of children, continued unabated in Burma. The Government had once again failed to bring relevant legislation in line with the Convention and to impose strictly available criminal penalties for the exaction of forced labour, which evidenced a clear absence of will. While noting the publication and dissemination by the Government of the ILO brochure on forced labour and its intention to translate it, this measure was inadequate to address the requirement by the Governing Body for an authoritative statement by the senior leadership against the continued use of forced labour. Moreover, although the number of submitted complaints had recently increased and in some cases child soldiers had been freed as a result of the complaints process, complainants continued to be harassed or jailed for utilizing this mechanism to denounce acts of forced labour, and lawyers representing victims were disbarred. Given that work towards the receipt and resolution of complaints would never be fully effective if there was the real possibility of retaliation, he called on the Government once again to immediately release all trade unionists jailed because of their involvement in the complaints process as well as to reinstate the relevant professional licenses.

In view of the increasing workload and low staffing levels of the ILO Liaison Office in Yangon, the Government’s intransigence severely limited the Office’s effectiveness. The speaker urged the Government to issue the necessary visas to expand the personnel, which was needed for specific areas with widespread practices of forced labour, including monitoring the impact of oil and gas pipeline and dam construction work on forced labour and verifying that no forced labour was used in mines and international projects. Furthermore, ILO member States should direct their embassies to closely coordinate activities with and fully support the work of the ILO Liaison Office. Continued deepened coordination with other UN agencies in Burma was also necessary to ensure that their work is complementary. Recalling the profound responsibility of ILO member States, in particular governments, under the ILO Constitution and recommendations of various supervisory bodies, to work towards the elimination of the scourge of forced labour, the speaker urged the Committee to redouble its efforts henceforth.

The Government member of Canada, given the small signs of progress and the repeated calls on the Government of Myanmar to take serious action, urged the authorities to live up to their commitment to end forced labour, both in the civilian and the military spheres, and to fully implement the recommendations of the Commission of Inquiry. She called for the release of former child soldiers jailed for desertion or serving sentences arising from their participation in the complaints mechanism established by the Supplementary Understanding. In view of the fact that the ILO Liaison Officer was still being refused an entry visa for an additional international civil servant, she stressed that ensuring that the Liaison Office was equipped to carry out its critical functions was a rudimentary indication of the Government’s commitment to the eradication of forced labour. While agreement in principle had finally been reached to translate the brochure into Shan language, reluctance remained to produce the brochure in other languages although this would again be a simple but important indication of the Government’s commitment. The positive and efficient approach taken by the Government in responding to complaints concerning under-age recruitment should be extended to all types of forced labour. The Government should also enforce the law and ensure that all perpetrators were prosecuted under the Criminal Code. Finally, she expressed the hope that the long awaited revision of the Village Act and the Towns Act of 1907 would be completed in the near future and strongly encouraged a positive response to the proposal for a joint Working Group/ILO meeting with the Finance and Planning Ministries and a joint Working Group/ILO meeting with the Ministry of Defence and senior military personnel.

The Government member of India expressed satisfaction at the progress made by the Government of Myanmar towards the observance of the Convention, as well as at the ongoing cooperation between the ILO and the Government in this regard, as illustrated by the constructive dialogue between the ILO High-level Mission to Myanmar and the Government in February 2011. The speaker further welcomed the extension of the Supplementary Understanding for another year as of 26 February 2011, the joint awareness workshops conducted by the ILO Liaison Office and the Labour Department, the publication of a brochure on the relevant law and the Supplementary Understanding, the continued functioning of the complaints mechanism and the steps taken to bring the 1907 Village Act and Towns Act in line with the Convention. While recalling that his Government had been and continued to be opposed to the practice of forced labour, he encouraged the ongoing dialogue and cooperation between the ILO and the Government of Myanmar and commended the ILO Director-General and his team for their efforts to assist Myanmar in tackling the problem of forced labour.

The Worker member of South Africa, recalling the history of apartheid and racial discrimination in his own country, emphasized that world solidarity, international trade sanctions and isolation were powerful tools in the fight for the respect for human rights. The recommendations put forward by the Commission of Inquiry had neither been met by the Burmese junta nor by the new civil authoritarian regime. One of the Commission’s recommendations was the budgeting of public works. Highlighting the contradiction between the Government’s argument that Burma is a poor country and the statement of the opposition party about the amount of revenues from exportation of gas, he deplored the fact that these revenues were not used to eliminate forced labour, child conscription or land confiscation. The non-implementation of the ILO recommendations was due to the lack of political will, and the reality of the situation had not changed after the elections. The Burmese people were still subjected to forced labour, land confiscation and arbitrary taxation which impacted on their basic human rights. He reiterated the importance to concentrate the work of the ILO on these issues, asking for wider cooperation of other international institutions present in Burma in order to build a country without forced labour where democracy and the rule of law would be the pillars for social development.

The Government member of China noted that many speakers had recognized that cooperation between the ILO and the Government of Myanmar was effective. Further progress had been achieved. The Supplementary Understanding had been extended for a year and draft laws were being prepared to bring the legislation into conformity with Convention No. 29. Numerous awareness-raising activities had also been carried out and an information brochure on the complaints procedure had been disseminated throughout the country. He recalled his Government’s constant position that forced labour was a violation of fundamental rights and needed to be eliminated. Appropriate technical assistance should be provided and cooperation between the ILO and the Government of Myanmar should be continued.

The Government member of Switzerland endorsed the statement made on behalf of the Member States of the European Union.

The Government representative thanked the Committee for the discussion and interest in the various measures taken or envisaged by the new Government of Myanmar. Some speakers had been referring to the country by the incorrect name of Burma, whereas the proper official name was the Republic of the Union of Myanmar, or in short Myanmar. He requested that in future deliberations of the Committee, all delegates address the country correctly as Myanmar, since this name had been recognized throughout the UN system. The speaker further rejected statements affirming that persons associated to the Supplementary Understanding mechanism had become political prisoners and that labour activists were detained. Those arrests were solely based on the violation of existing laws and not on freedom of association or the Supplementary Understanding mechanism. Moreover, on 16 May 2011, the President had granted an amnesty covering approximately 14,000 prisoners. As regards the interventions alleging a situation of impunity in Myanmar, he stated that any perpetrators of forced labour, whether civilian or military, would be dealt with, as nobody is above the law. In terms of the mentioned incidents in border areas, while conceding that there might have been some minor quarrels and scuffles, the speaker refuted those interventions as politically motivated and based on false information. Finally, although the Government of Myanmar moved towards democracy, this could not be achieved instantly and transition might take a certain time. He therefore called upon the international community to be patient and pledged that his Government would do its best.

The Employer members indicated that they were very disappointed by the closing remarks of the Government. They were expecting a positive attitude, one that would give a blueprint on how the Government planned to move forward. Because of the history of the country, they expressed their scepticism about the Government’s statement that people were incarcerated for violating the law and not for other reasons. As regards the issue of impunity, they recalled that it appeared that the military was above the law. They saw a fundamental legal challenge in the Government’s indication that the Village Act and the Towns Act were revised at 80 per cent but that nothing could be done about the Constitution and wondered if the amendments to these acts would have any effect in either law or practice. The situation was the same as in previous years and the Employer members recommended that the starting point for the conclusions of the Committee this year be the conclusions reached at last year’s session as there was no indication of significant and meaningful change on the ground in Myanmar.

The Worker members said that it was both urgent and timely to relaunch ILO action on the basis of the 2000 ILC resolution. The Government needed to implement in full and without delay the three recommendations made by the Commission of Inquiry and, in the first place, to take the necessary measures to revise the Constitution so as to bring it into conformity with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and Convention No. 29. It also immediately needed to take the practical measures called for by the Commission of Inquiry and, firstly, to stop bringing to court, penalizing and imprisoning complainants, facilitators and others following the lodging of complaints and to allocate the gas and oil revenues to remunerating work performed freely, instead of having recourse to forced labour. Finally, trade unionists and political detainees needed to be released immediately.

The Worker members indicated that they expected that employers would refrain from having recourse to forced labour and from investing in the country for as long as it remained a military or semi-military dictatorship. Employers also needed to comply with the OECD Guidelines for Multinational Enterprises and with human rights, as defined by the United Nations. Moreover, governments must not let up on the application of sanctions and needed to offer their support for a United Nations commission of inquiry into crimes against humanity. It was also necessary for the diplomatic community in the country to provide its support and expertise to the ILO Liaison Officer and for all United Nations institutions to cooperate more closely to extend their activities throughout the country.

The Worker members added that they expected the Office to focus not only on the Supplementary Understanding and the complaints mechanism, but also to take the necessary action for the elimination of forced labour: the strengthening of the human and financial resources of the Liaison Office so that it could cover all the regions of the country; the follow-up of the issue of freedom of association by a Liaison Officer; and the monitoring of forced labour in current major projects (mining, major dams, etc.). If there was insufficient progress, the Governing Body should be able to seek an opinion from the International Court of Justice on the violation of Convention No. 29. Finally, the Worker members also expected the Office to once again request information from governments and employers on the initiatives that they had taken within the framework of the 2000 ILC resolution.

Conclusions

The Committee noted the observations of the Committee of Experts on the application of Convention No. 29 by the Government of Myanmar, as well as the report of the ILO Liaison Officer in Yangon that included the latest developments in the implementation of the complaints mechanism on forced labour established on 26 February 2007 with its trial period extended, in February 2011, for a further 12 months to 25 February 2012.

The Committee also noted the discussions and decisions of the Governing Body of November 2010 and March 2011. It further took due note of the statement of the Government representative and the discussion that followed. In particular, the Government referred to the ongoing revision of the Village Act and the Towns Act and indicated that the draft law explicitly prohibits forced labour and includes reservations in the case of natural disasters. He also referred to ongoing awareness-raising activities, including in ethnic minority regions, and to the allocation of funds for the purpose of alleviating the chances of unpaid labour on the part of the Government. As regards complaints of under-age recruitment, he stated that children had been released, disciplinary action taken against military personnel and some officers dismissed and sentenced to prison terms. He stated that it was evident that action would be taken against any perpetrator, civilian or military, on forced labour and under-age recruitment.

The Committee welcomed the release from house arrest of Daw Aung San Suu Kyi that it had been calling for over many years. It again called for the immediate release of other political prisoners and labour activists.

The Committee referred to the political restructuring that had taken place since the last meeting and noted the initial policy priority statements of the newly elected President on good government and good governance. The Committee firmly expects that these objectives will be transposed into substantive positive actions and proactive and preventive measures for the eradication of all forms of forced labour and the advancement of workers’ rights.

Despite the above, the Committee regretted to note that there had been no substantive progress achieved towards complying with the 1998 recommendations of the Commission of Inquiry, namely to:

(1) bring the legislative texts in line with the Forced Labour Convention, 1930 (No. 29);

(2) ensure that in actual practice forced labour is no longer imposed by the authorities; and

(3) strictly enforce criminal penalties for the exaction of forced labour.

The Committee recalled the continued relevance of the decisions concerning compliance by Myanmar with Convention No. 29, adopted by the Conference in 2000 and 2006, and all the elements contained therein. (Endnote_1) It expressed the firm expectation that the Government move with urgency to ensure that the actions requested are carried out at all levels and by all civil and military authorities. The Committee strongly urged the Government to fully implement, without delay, the recommendations of the Commission of Inquiry and the comments and observations of the Committee of Experts.

The Government in particular should:

(1) submit the draft proposals for amendment of the Village and Towns Acts to the ILO for comment and advice aimed at ensuring their full conformity with Convention No. 29, and ensure their early adoption into law and application in practice;

(2) take steps to ensure that the constitutional and legislative framework effectively prohibit the exaction of forced labour in all its forms;

(3) take all necessary measures to prevent, suppress and punish the full range of forced labour practices, including the recruitment of children into armed forces, forced conscription into fire brigade and militia reservist units, portering, construction, maintenance and servicing of military camps, agricultural work, human trafficking for forced labour, that are still persistent and widespread;

(4) strictly ensure that perpetrators of forced labour, whether civil or military, are prosecuted under the Penal Code and that sufficiently dissuasive sanctions are applied;

(5) carry out, without delay, proposed consultations between the ILO and the finance and planning ministries towards ensuring that necessary budget allocations are made so that workers are freely contracted and adequately remunerated;

(6) provide for meaningful consultations between the ILO and the Ministry of Defence and senior army representatives to address both the policy and behavioural practices driving the use of forced labour by the military;

(7) immediately cease all harassment, retaliation and imprisonment of individuals who use, are associated with or facilitate the use of the complaints mechanism;

(8) release immediately complainants and other persons associated with the use of the complaints mechanism who are currently detained and reinstate any consequentially revoked professional licences;

(9) intensify awareness-raising activities throughout the country including in association with major infrastructure projects and in training of police and military personnel;

(10) facilitate, without delay, the production and wide distribution of the brochure in the remaining local languages; and

(11) actively pursue agreement of a meaningful joint action plan with the United Nations Country Task Force on Monitoring and Reporting in respect of children in circumstances of armed conflict, of which the ILO is a member, addressing amongst other things under-age recruitment.

As called for in the 2000 ILC resolution of the International Labour Conference, the Committee counted on the collaboration of all agencies in the United Nations system in the efforts for the effective elimination of forced labour in Myanmar. It similarly called on all investors in Myanmar to ensure that their activity in the country is not used to perpetuate or extend the use of forced labour but rather makes a positive contribution to its complete eradication.

The Committee called for the strengthening of the capacity available to the ILO Liaison Officer to assist the Government in addressing all of the recommendations of the Commission of Inquiry, and to ensure the effectiveness of the operation of the complaints mechanism, as well as any other additional action necessary for the complete elimination of forced labour. In particular, the Committee firmly expected that the Government would give full assurances without delay for the granting of entry visas for additional international professional staff.

The Committee called on the Government to review with the ILO Liaison Officer the references to forced labour orders made during its discussion, as well as the orders and similar documents which have been submitted to the Committee of Experts and requested that the progress made in this regard be reported to the Governing Body at its November session. It encouraged the Government to make use of the ILO Office to put in place a mechanism for the immediate review and investigation of these allegations.

The Committee urged the Government to provide detailed information on the steps taken on all the abovementioned matters to the Committee of Experts for its examination this year and expects to be in a position to take note of significant developments at the next session of the Conference.

Not reproduced:

Document D.5

B. Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29), by Myanmar

C. Report of the Liaison Officer to the special sitting on Myanmar (Convention No. 29) of the Committee on the Application of Standards

D. Conclusions adopted by the Committee on the Application of Standards in its Special sitting to examine developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) (International Labour Conference, 99th Session, June 2010)

E. Documents before the Governing Body at its 309th Session (November 2010) and Governing Body conclusions

F. Documents before the Governing Body at its 310th Session (March 2011) and Governing Body conclusions

Endnote 1

http://www.ilo.org/public/english/standards/relm/ilc/ilc88/resolutions.htm#I, http://www.ilo.org/public/english/standards/relm/ilc/ilc95/pdf/pr-3-2.pdf.

Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

A. Record of the discussion in the Committee on the Application of Standards

A Government representative of Myanmar reaffirmed that eliminating the practice of forced labour in his country was an important goal set by the Government of Myanmar for the people, and equally shared by the ILO and the international community. Sincere efforts had been made to this end in close cooperation with the ILO, particularly with the ILO Liaison Officer. While relative progress had been achieved, current socio-economic conditions were not conducive to this goal. Time was needed to produce the desired result and the situation had to be looked at objectively and constructively.

Turning to some of the developments since this Committee’s session in June 2009, he wished to highlight the extension of the Supplementary Understanding (SU) between the Government of Myanmar and the ILO for another year following the visit of the ILO delegation from 17 to 24 January 2010. This extension reflected the appreciation and support for the work of the ILO by the Government of Myanmar and its commitment to eradicate forced labour in the country. With regard to the complaints mechanism under the SU, he stated that the Liaison Officer’s report recognized his Government’s full cooperation with the complaints mechanism through the Government Working Group for the Elimination of Forced Labour (the Working Group). Timely responses to the complaints submitted under the SU and the facilitation of training and awareness-raising activities, including the training for military personnel, would not have been possible without his Government’s commitment. Movement of the Liaison Officer had also been facilitated.

Concerning the actual extent of the forced labour situation in the country, the speaker pointed out that only 196 alleged cases of forced labour had been submitted to the Working Group from February 2007 to 17 May 2010; 125 of those had been investigated and met with solutions proportionate to their gravity. The results of the investigations on 35 cases had been transmitted to the Liaison Officer. Highlighting that Myanmar had a population of 58 million today, he considered that 196 cases over a three-year period for such a population could not be regarded as widespread. Without intending to suggest that the practice of forced labour was acceptable or tolerable, the statistics and analysis of the issues showed that forced labour was not widespread in the country. While problems remained at the local level, the Government was taking necessary measures to solve them.

Turning to the need for raising awareness about forced labour and its prohibitions, he indicated that a total of 13 awareness-raising activities had been successfully conducted since June 2009, for state/division and village authorities and representatives of military units, as well as UN and INGO field staff. The last workshop had been held in Pegu with the participation of administrative authorities from 14 townships in the area, the township police force and representatives from the Ministry of Defence, the Ministry of Immigration and Population and the Ministry of Labour. More activities would be carried out in the future so that more constituents would be aware of their rights, obligations and consequences concerning forced labour. The simply worded brochure explaining the law on forced labour, the SU and the complaint mechanism was presently being printed and distributed.

With regard to the question of under-age recruitment, the speaker recalled his Government’s statement at the 307th Session of the Governing Body (document GB.307/6) that parents, guardians or relatives could file complaints on under-age recruitment directly to any recruitment centre or military establishment. The military authorities were fully prepared to receive and follow-up on complaints. At the same time, the authors of a complaint may also resort to the SU complaints mechanism and in this regard there was no restriction on the part of the authorities. While being aware of some incidents of under-age recruitment at the local level, these were neither prevalent nor systematic, and should not be generalized. The Committee for the Prevention of Military Recruitment of Under-age Children was actively engaging in poster campaigns, training of military personnel, monitoring of the recruitment process, taking action on perpetrators and, more importantly, the speedy and steadfast releasing of proven under-age recruits. It was regularly providing information on the progress of its work to the relevant UN agencies and would continue to pursue its objectives, which included finalizing a Plan of Action in close cooperation with, among others, UNICEF and UNHCR.

While expressing appreciation to the Liaison Officer for his transparent and cooperative manner in sharing with the Government the draft report to this Committee, the speaker declared that some of the views and approaches expressed in the report were neither objective nor acceptable. Some of the information in the report was outside the mandate of the Liaison Officer and outside the purview of the SU. In future, the Working Group and the Liaison Officer might need to interact more in order to obtain a better understanding of the modus operandi of the Liaison Officer.

The speaker concluded by expressing the conviction that the Government of Myanmar would spare no efforts in attaining the goal of eliminating forced labour.

The Employer members expressed the view that, while some small positive steps could be seen, the situation in Myanmar remained fundamentally unchanged and that the Government was quite far from the abolishment of forced labour. Responding to the Government’s statement that change would take time due to the socio-economic conditions of the country, they indicated that, given the duration of these issues, it was time to overcome these obstacles. The Employer members welcomed the Liaison Officer’s report, and stated that it did not exceed his mandate. The work of the Liaison Officer was growing and his office was understaffed. The Employer members noted with regret that the visa application for an additional staff member had not yet been approved, and urged the Government to do so.

With regard to the elimination of forced labour in both law and practice, the Employer members stated that substantial problems remained. Forced labour involving the military continued at all levels, with an increase of complaints concerning the recruitment of minors into the military, in addition to the intimidation, harassment and imprisonment of those filing complaints in this regard. Examinations of complaints concerning the recruitment of minors should be included in the Liaison Officer’s mandate. In addition, it appeared that there was conclusive evidence of the systematic imposition of forced labour by military and civil authorities, particularly the submission by the International Trade Union Confederation (ITUC) to the Committee of Experts in 2009 indicating that more than 100 Order “letters” for the requisition of forced labour had been issued between December 2008 and June 2009. Turning to the Village Act and Towns Act, the Employer members asked when these statutes would be repealed.

While substantial problems remained, small signs of progress could be seen in the Liaison Officer’s report including: the third extension of the Supplementary Understanding (SU); the positive response of the Working Group to training and awareness-raising activities; the relatively timely response to complaints filed through the SU through the Working Group; the involvement of the Ministry of Defence in the delivery of training to military personnel on the law regulating under-age recruitment; the planned publication of a brochure on the SU and the procedures to file a complaint; the prosecution of two military officers in connection with forced labour (representing only a small proportion of necessary prosecutions); and the release of 14 out of 20 persons imprisoned relating to procedures under the SU, though the remaining six had yet to be released. Despite these positive signs, there was still a fundamental lack of civil liberties in Myanmar, in particular, the right to freedom and security of the person, freedom of opinion and expression, freedom of assembly and association, the right to a fair trial by an independent and impartial tribunal and protection of private property. Furthermore, there was still a substantial climate of fear and intimidation of citizens, including the continued house arrest of Aung San Suu Kyi. Those were the root causes of forced labour, child labour, recruitment of child soldiers, discrimination and the absence of freedom of association.

With regard to the Government’s statement that the number of complaints was low given the large population of Myanmar, the Employer members expressed the view that this low number might be due to a lack of access to the complaints mechanism and because of pressure felt by the population not to file a complaint. A number of complaints of trafficking in persons for the purpose of forced labour had been deemed not receivable by the Working Group and referred to the Ministry of Home Affairs. Forced labour in Myanmar needed to be addressed holistically, and the Government was strongly urged to receive cases of trafficking for the purpose of forced labour without delay.

Turning to the recently adopted Constitution, the Employer members noted that the qualifications contained in the article banning forced labour raised questions regarding its conformity with Convention No. 29. The Convention must be fully and completely implemented in law and in practice. The Government remained far from applying the measures recommended by the Commission of Inquiry that, for example, legislative texts, particularly the Village Act and Towns Act, should be brought into conformity with the Convention, the authorities should cease to impose forced labour and the sanctions provided for imposing forced or compulsory labour be strictly applied. The implementation of those recommendations would be guaranteed if the Government took action in the four areas identified by the Committee of Experts in its 2009 observation; yet, the matters that needed to be addressed remained unresolved.

The Employer members urged the Government to provide full and detailed information as an unequivocal sign of its genuine willingness to cooperate with the Committee and the supervisory bodies. Transparency and collaboration with the Liaison Officer was essential. The Government was reminded that the agreement on the SU and the creation of a complaints mechanism did not relieve it of its obligations under Convention No. 29. The Government needed to make tangible improvements in national legislation and provide sufficient funds so that voluntary paid labour could replace forced labour in the civil and military administration to demonstrate its unambiguous willingness to combat forced labour and bring an end to the climate of impunity. The situation in Myanmar had persisted far too long, particularly as it had ratified Convention No. 29 over 50 years ago and the Government of Myanmar needed to end forced labour.

The Worker members recalled that the discussion was part of the follow-up to the conclusions and recommendations of the Commission of Inquiry established by the Governing Body in 1997, which had concluded that the Government of Myanmar was constantly and systematically violating Convention No. 29 and which had urged it to take three sets of measures. Firstly, it had requested that the country’s legislation be brought into line with Convention No. 29. On that point the Government was still not prepared to repeal either the Village Act or Towns Act, even though it claimed that they were not applied in practice. There was every reason to believe that repealing the laws would, in any case, no longer be enough, as article 359 of the new Constitution, which banned forced labour, provided for an exception in the case of work imposed by the State in the interest of the people, thereby opening the door to every kind of forced labour. Secondly, the Commission of Inquiry had called for the adoption of specific measures guaranteeing that the military authorities would no longer impose forced labour. Both the Committee of Experts and the Commission of Inquiry had repeatedly made it clear that the civilian and military authorities, and the population at large, needed to be given precise instruction to that effect. A number of activities had been carried out which marked a degree of progress, but the Government must undertake to provide more information, conduct a more coherent and systematic public awareness campaign, distribute leaflets on the subject in all the local languages and declare unambiguously that it was prohibiting all forms of forced labour. The Worker members also emphasized that the budget for recruiting paid workers in the place of unpaid forced labour was still inadequate or was not adequately utilized. The machinery for handling complaints was useful but its effectiveness was limited by the poor facilities available to the Liaison Officer and his limited sphere of action, by the reprisals suffered by victims who lodged complaints and by the refusal of the local authorities to use the machinery. As a result, civil and military authorities continued to impose forced labour systematically throughout the country. The third issue raised by the Commission of Inquiry concerned the application of sanctions. Although the Penal Code provided for sanctions against people who imposed forced labour, not one of the complaints lodged in 2009 under the Supplementary Understanding had led to charges being brought and only administrative sanctions had been imposed in the cases of minors being recruited by military personnel. This was a source of considerable concern, especially where military personnel were implicated. Although the Liaison Officer played a vital role in helping to do away with forced labour, it was necessary that the Government cooperate fully. Much remained to be done towards applying the Convention.

Another spokesperson for the Worker members also felt that the present case should not be reviewed in a historical vacuum and wished to assess the progress that the Government had made with respect to the Conference Committee’s conclusions of 2009. These seven conclusions had not been effectively or significantly implemented by the Government, namely bringing the relevant legislative texts, in particular the Village Act and the Towns Act, into conformity with the Convention; amending paragraph 15 of Chapter VIII of the new Constitution; ensuring the total elimination of widespread forced labour practices; ensuring that perpetrators of forced labour be prosecuted and punished under the Penal Code; issuing an authoritative statement at the highest level clearly confirming the Government’s policy for the elimination of forced labour and its intention to prosecute perpetrators; approving a simply worded brochure in accessible languages on the functioning of the SU; and eliminating problems in the physical ability of victims of forced labour or their families to complain and immediately ceasing the harassment, retaliation and imprisonment of individuals who used, or facilitated the use of, the complaints mechanism. Special sittings for this case had been held for a decade, and there continued to be substantial non-compliance with the Committee’s conclusions, as well as the recommendations of the Commission of Inquiry. This persistent non-compliance challenged and affronted the supervisory function of the ILO and the ILO Constitution.

Referring to the conclusions of the Commission of Inquiry, the Worker members emphasized that necessary budgetary allotments needed to be made to assure the contracting of voluntary labour. The Committee of Experts, in its 2009 observation, stated that any budgetary allocations for this purpose were not adequate or not adequately utilized. Therefore a lack of progress was due to a lack of political will, and not because of resource constraints. Turning to the need for criminal prosecution of the intellectual and material perpetrators of forced labour practices expressed in the Commission of Inquiry’s conclusions, the Worker members noted that the Committee of Experts, in its 2009 observation, had indicated that none of the complaints assessed and forwarded by the Liaison Officer to the Working Group had resulted, in 2009, in a decision to prosecute fully and convict criminally perpetrators of forced labour. This included a case where the explicit recommendation by the Liaison Officer for criminal prosecution was rejected. While the Government’s agreement to continue the SU was favourable, the Government continued to undermine its effective implementation. The Committee of Experts had concluded that the Government persisted in imprisoning facilitators of complaints, and that complainants were subject to detention, harassment and judicial retaliation. In a number of cases, complainants chose not to pursue their claims out of fear of such reprisals.

The Worker members recalled the 2007 decision of the Governing Body to defer seeking an advisory opinion from the International Court of Justice (ICJ) on this case until the necessary time, and that the question for the ICJ could be whether the Government’s cooperation with the Commission of Inquiry’s recommendations “met the relevant threshold”. Three years later, the Government was nowhere near the threshold, and this Committee should assume responsibility for the undermining, by the Burmese Government, of the supervisory system.

The Government member of Spain, speaking on behalf of the Government members of the Committee member States of the European Union and of the Government members of San Marino, Switzerland and Norway, expressed concern about the critical human rights situation in Burma/Myanmar, as reported by the Liaison Officer, the United Nations Special Rapporteur on the situation of human rights in Myanmar, as well as the UN Human Rights Council and the UN General Assembly. The authorities of Burma/Myanmar should take steps to bring about peaceful transition to a democratic and civilian system of government and to make the planned elections credible, transparent and inclusive. The political and socio-economic challenges facing the country could only be addressed through genuine dialogue between all stakeholders, including ethnic groups and the opposition. The speaker called upon the Government to release all political prisoners and detainees, including Aung San Suu Kyi, and expressed grave concerns about the non-compliance by Burma/Myanmar with Convention No. 29.

The speaker welcomed certain positive steps taken by the Government of Burma/Myanmar, such as the renewal of the trial period of the SU complaints mechanism; the publication and distribution of the simple-worded brochure, in local languages, setting out the law against forced labour and the complaints mechanism under the SU; and the proposals that the Penal Code and Military Regulations on forced labour incur imprisonment of military personnel for the recruitment of minors. The speaker urged the Government of Burma/Myanmar to build on these steps by ensuring that proposed amendments to the laws and regulations were put in practice.

Full compliance with Convention No. 29 was far from being achieved. It was deeply regrettable that persons who had used the complaints mechanisms in order to denounce forced labour were imprisoned. This was contradictory to the Government’s own commitment under the SU and, as had been indicated by the ILO Governing Body, would undermine the progress made to date. Therefore, imprisoned complainants should be released. The authorities were urged to put an end to the recruitment and use of child soldiers, and to pursue their collaboration with the Special Representative of the Secretary-General for Children and Armed Conflict. He expressed deep concern that complaints against serving military personnel were difficult to pursue, especially in light of reports of their use of forced labour for porterage and sentry guards. Finally, the speaker called upon the authorities to respect their commitment and reaffirmed the importance of the cooperation between the authorities of Burma/Myanmar and the ILO.

The Worker member of Malaysia indicated how the continued situation of forced labour in Burma/Myanmar was having a negative impact on the member countries of the Association of Southeast Asian Nations (ASEAN), and in particular on workers and trade unions. Emigration to avoid forced labour was a major contributing factor to the presence of more than two million migrants from Burma in Thailand, nearly 200,000 in Malaysia and undocumented numbers in Bangladesh. The social and legal issues involved, and the complex situation with respect to the Burmese migrant workers, were a huge financial and political drain on governments, and the workers’ organizations in Thailand and Malaysia had to deal with the impact of unscrupulous employers’ practices taking advantage of these migrants. Highlighting the continuing exaction of forced labour in North Arakan from hundreds of Rohingya villagers of Maungdaw Township, to build a fence and check posts along the Bangladesh border, he indicated that forced labour depriving the poor from their wages had been the primary root cause for emigration to Bangladesh. While the ILO and the broader international community had been trying to end human trafficking, the Government of Burma/Myanmar seemed to be doing the reverse. He concluded that the continuing forced labour and denial of fundamental rights were driving workers from Burma to ASEAN and South Asian countries, weakening the social, economic and security conditions in these countries. If Burma wanted to be given due respect as a partner in ASEAN, its Government had to make the necessary changes to end forced labour.

The Government member of Thailand welcomed the continued cooperation and dialogue between the Government of Myanmar and the ILO. The developments within the last year were encouraging, namely the functioning of the complaint mechanism, training and awareness-raising activities, operational field missions, consultations between the Liaison Officer and the Working Group and the extension of the SU. The Myanmar Government had responded in a reasonably timely manner to complaints that had been lodged under the SU and progress was made regarding underage recruitment in the military. The Government should be encouraged to continue this positive trend in partnership with the ILO to ensure the protection of complainants, facilitators and others associated with the filing of complaints. Awareness raising was a key element in addressing forced labour and it was crucial that state authorities and the general public be fully aware of the national laws prohibiting forced labour and the complaints mechanism. The Government’s agreement on the final layout of the brochure on this mechanism, which would soon be available to the public was to be welcomed. Wide-ranging distribution of the brochure was necessary, especially in rural areas and in areas with a high number of reported complaints. It was apparent that Myanmar was willing to work with the international community, although more still needed to be done. The Government of Thailand stood ready to support and cooperate with Myanmar on this matter.

The Government member of Norway aligned herself with the statement made by the Government member of Spain indicating that, while some positive steps had been made, concern about the human rights situation and the lack of compliance with Convention No. 29 remained. Improvements of the legal framework needed to be accompanied by real efforts on the ground, and the ILO should be given unrestricted access to verify these efforts in practice. The speaker then drew attention to the situation in the states dominated by ethnic minorities, where armed conflicts and tensions made the population particularly vulnerable to forced labour and the recruitment of child soldiers. She urged the Government to allow access by international experts to these areas in order to verify compliance with national legislation and international commitments by Myanmar.

The Worker member of Japan referred to the information from a fact-finding mission conducted in February 2010 by a Japanese non-governmental organization to refugee camps along the Thai–Burmese border, which indicated that all new refugees were victims of forced labour exacted by the Burmese army. She also referred to the death of a 15-year-old child soldier in Pyontaza in May 2010, who was killed for refusing to join the army and she expressed the view that this death was a by-product of the army’s policy whereby soldiers must fulfil recruitment quotas. The resolution adopted by the International Labour Conference in 2000, which recommended that all member countries review their relations with the Government of Burma, had not been properly implemented. She noted that according to the report of the Burmese National Planning and Economic Development Ministry, by March 2010, the pledged amount of foreign direct investment in the country exceeded US$16 billion. This was a significant increase from last year, largely due to investment in the oil and gas sector. The Government was heavily dependent on the exports from this sector, accounting for more than 40 per cent of the country’s income. Thailand, Singapore and China are the top three countries making direct investment to Burma. This investment served to support the Government and contributed to maintaining the situation of forced labour. She urged governments and employers making investments in Burma to review their relations with the country. Referring to the conclusions of the Selection Committee of the International Labour Conference in 2006, she called for the establishment of a reporting mechanism on steps taken by international institutions, governments and organizations of employers and workers to implement the International Labour Conference Resolution of 2000. She also urged the Government to release Aung San Suu Kyi and other political prisoners.

The Government member of the United States commended the ILO, in particular the Liaison Officer and his deputy, for their excellent work, despite the difficult circumstances they often faced. It was now ten years ago that the International Labour Conference had adopted the unprecedented measures available under article 33 of the ILO Constitution in an attempt to secure Burma’s compliance with the recommendations of the Commission of Inquiry relating to long-standing, methodical and gross violations of Convention No. 29. Recalling the three specific and clear recommendations made by the Commission of Inquiry, she noted, like some previous speakers that, since the last session of the Conference, there had been a number of steps forward. She encouraged the Government to continue and increase its efforts and urged it to ensure that the simply worded brochure on the complaints mechanism be translated into other local languages and broadly disseminated particularly in rural areas. Notwithstanding these positive steps, continuing and serious deficiencies remained, such as evidence of continuing forced labour throughout the country, the limited reach of the Supplementary Understanding and the discouragement of Burmese citizens from filing complaints, as well as retaliation, including imprisonment, against persons connected with the complaint mechanism. The legislative texts had still not been amended and penalties against forced labour remained inadequate particularly in cases involving military personnel. It was profoundly regrettable that the recommendations of the Commission of Inquiry had still not been implemented and much remained to be done on an urgent basis. Sustained action at all levels was therefore necessary to eliminate forced labour in Burma. The Committee of Experts had identified the types of concrete actions to be taken by the Government to this end and the ILO was willing and able to help it achieve the necessary results. It was incumbent upon the Government to continue to avail itself of the expertise and the assistance of the ILO, and it should take steps to permit additional staff resources so that the ILO Liaison Office in Burma could sufficiently meet the growing demands placed on it. This included issuing without further delay the visa for an international staff member. The Liaison Office should also be allowed to address all situations that fell within the scope of forced labour as defined by Convention No. 29. Only a truly democratic government could effectively guarantee its citizens their human and workers’ rights. She urged the Government to release all political prisoners and detainees, including Aung San Suu Kyi, and to engage in a genuine, open and inclusive dialogue to find a lasting solution to the problem of forced labour in Burma.

The Government member of Japan commended the ILO, including the Liaison Officer, on its efforts to improve the situation regarding forced labour in Myanmar, and noted some positive results. He particularly commended the willingness of the Government of Myanmar to cooperate with the ILO and the efforts by the Government and the military to address the issue of child soldiers. However, it was regrettable that forced labour by the military could still be found and that reports of cases of detention and punishment of complainants and facilitators continued. Greater efforts were needed on the part of the Government, including at its highest level, to cooperate closely with the military, to ensure that the central government’s policy on the elimination of forced labour was effectively thoroughly implemented on the ground. As awareness-raising activities were essential, he expressed the hope that the Government of Myanmar would continue to implement such activities and urged it to start the actual distribution of the simply worded brochure as soon as possible. Given the increased workload on the ground, he requested the Government to respond positively to visa applications for new international staff members.

Lastly, Japan reiterated its call on the Government of Myanmar to release all prisoners of conscience in advance of the national elections expected this year, and that the elections would take place in a free and fair manner with the participation of all parties concerned. In order to realize such elections, it was also essential that freedom of association be guaranteed. In this connection, Japan requested that the Myanmar Government do its utmost in cooperation with the ILO.

The Worker member of the Philippines noted that, in his report, the Liaison Officer had mentioned a number of positive steps that the Government had taken with respect to the implementation of the Supplementary Understanding and the extension of its validity, but also that no progress had been made regarding the main recommendations of the Commission of Inquiry. The Conference Committee had been discussing this case for over a decade and it was regrettable that the Government of Myanmar was still not delivering on its promises. Myanmar was a member of ASEAN, one of the main objectives of which, was to “strengthen democracy, enhance good governance and the rule of law and to promote and protect human rights and fundamental freedoms”. He supported the statement made by the Government member of Thailand calling for free, fair and all-inclusive elections, while even though these elections would not, in any case, eradicate forced labour in the country. In conclusion, he stated that it was high time for the Government of Myanmar to repeal the Village Act and the Towns Act and to amend the Constitution with a view to prohibiting all forms of forced labour, as a first step towards its eradication.

The Government member of Singapore welcomed the continued efforts made by the Government of Myanmar with regard to the observance of Convention No. 29, making more specific reference to the renewal for one year of the Supplementary Understanding and to the functioning of the complaints mechanism. He also welcomed the role of the Liaison Officer in training and awareness-raising activities, with the support of the Government. These activities seemed to have an impact on the enforcement of the legal provisions prohibiting forced labour. Furthermore, the speaker acknowledged the continued efforts made by the Committee on the Prevention of Military Recruitment of Under-age Children for the training of military personnel and communities, the discharge of soldiers found to be under age and the investigation of complaints on forced military recruitment. This demonstrated the seriousness of the Government in stopping under-age military recruitment. What was needed now was a change of mindset in the military. The improved relationship between the ILO and the Government of Myanmar had made it possible for the Government to discuss setting up a proper framework for the recognition of the principles of freedom of association and the right to collective bargaining. Draft legislation on trade unions would be submitted to the new Parliament after the upcoming elections. Finally, the speaker expressed the hope that the Government would facilitate the recruitment by the Office of an additional international staff member to help with the tremendous workload of the Liaison Officer.

The Worker member of the Republic of Korea stressed that trade and foreign investments were worsening the situation of forced labour and human rights in general in Burma. Indeed, many countries continued to trade with Burma, which was directly contributing to finance the military regime and contrary to the resolution adopted in 2000 by the International Labour Conference. In addition, many projects by foreign companies were conducted with the use of forced labour, forced relocation and various types of human rights violations. The speaker’s organization had repeatedly called on the Government of the Republic of Korea to stop investing in the oil and gas sector in Burma and engaging in trade with the Burmese military regime, without success however. She also recalled that the United Nations Special Rapporteur on the Situation of Human Rights in Myanmar had considered that extraction activities had directly resulted in an increase in human rights abuses committed by the military against the people living along a gas pipeline project, including forced labour overseen by the Burmese army. This project was also one of the major sources of income for the military junta, allowing it to ignore international pressure and democratic demands of the people of Burma. As investments in new projects escalated, the speaker once again requested ILO member States and constituents to fulfil their obligations under the International Labour Conference resolution of 2000 for the eradication of forced labour and human rights abuses in the country.

The Government member of New Zealand, speaking also on behalf of the Government of Australia, thanked the Liaison Officer for his report, which highlighted some positive developments. There were indications that the growing familiarity of local authorities with Convention No. 29 had resulted in a reduction of the use of forced labour by civilian authorities in some areas. The approval of the brochure on the complaints mechanism under the Supplementary Understanding was to be welcomed, but she expressed concern about the willingness of the Myanmar Government to address persistent forced labour problems. The Liaison Officer had encountered difficulties in reaching successful outcomes in cases involving forced labour by the military. She called upon the Myanmar authorities to act to prevent this practice. It was important that the mandate of the Liaison Officer encompassed all aspects of forced labour, and she called upon the Government to grant a visa to the new international staff member which would signal its commitment to the ILO’s work. As previous speakers, she urged the Myanmar authorities to use the opportunity of the planned elections to move the country towards a democratic future, and called upon the Government to release all political prisoners, including Aung San Suu Kyi, and those imprisoned due to association with the Supplementary Understanding complaints mechanism.

An observer representing the Federation of Trade Unions of Burma (FTUB), speaking on behalf of the ITUC, observed that although the information provided in the report by the Liaison Officer tended to indicate that the ILO mechanism worked, the violations still taking place in Burma were indicators that forced labour and forceful recruitment of child soldiers persisted contrary to Convention No. 29.

On 20 May 2010, the Democratic Voice of Burma reported that less than ten days ago a child had been killed for refusing to join the army. Tin Min Naing, aged 15 years, son of U Htay Win of San Phae village, War-Yone-kone unit, Nyaunglaybin township, Pegu division, was killed by soldiers when he and a friend, while looking for rats to eat, reached a sentry post at a bridge, and were asked to join the army. When the two friends refused, Private Moe Win (TA 41842) shot Tin Min Naing and hid the body under bushes in the stream. It was reported that the outpost had been manned that day by Corporal Kyaw Moe Khaing and Privates Moe Win (TA 41842) and San Ko Ko of the 2nd column, light Infantry Division 586. The family filed the murder case at Pyuntaza police station and the police commander of Nyaunglaybin township went to inspect the sentry post immediately. In March 2010, the Federation of Trade Unions Kawthoolei (FTUK) reported to the Liaison Office in Rangoon that forced labour was occurring in Karen state. It was understood that the Liaison Office had started planning an assessment and awareness-raising mission to take place in that area.

These two cases, one concerning child soldier recruitment and the other concerning forced labour involving from one to 200 persons, both took place in the Taungoo area of Bago division, despite the fact that this division was one of the locations in which an awareness-raising seminar had been led jointly by the ILO and the Ministry of Labour for local authority personnel and representatives of military units, according to the Liaison Office report. The events after this seminar were an indicator that the trainees at the Bago local authority level, who should be personally in charge of the troops in that area, either failed to implement what had been discussed at the seminars or did not have the authority to implement it. This might be an indicator that the Supplementary Mechanism did not work effectively in the Bago division and that there was no political instruction to implement what had been discussed at the seminar. It also meant that there were no enforcement mechanisms in place to hold the perpetrators accountable.

On 11 March 2010, the United Nations Special Rapporteur on the situation of human rights in Burma recommended that the UN should consider establishing a Commission of Inquiry into war crimes and crimes against humanity committed by the Burmese Government. Taken together, the reports of the UN Human Rights Council and the ILO demonstrated, first, a systematic abuse of human beings in Burma for the benefit of the ruling junta and, second, a lack of political commitment to change the system.

The Government reported that an election was forthcoming and that things would change after the election. However, this junta was the one that had refused to honour an election they had hosted in 1990. Having lost faith in the junta and their electoral process, the people of Burma, unless coerced, would not be voting in that election. The National League for Democracy that had won the 1990 election was not participating in the 2010 election, which was a farce. The next government would be composed of the junta without their military uniforms. This election and the new Constitution which allowed forced labour under section 359 would become yet another barrier facing the ILO in its mission to eradicate forced labour in Burma. Convention No. 29 would still be violated under the excuse that time was needed for the new government to settle down. It was clear that for a number of reasons, the junta itself and the delegations to the International Labour Conference which promised the ILO to eradicate forced labour were unable to deliver on their promise. Since the junta was unable to protect its own people, after over a decade of asking for the impossible and losing scarce resources, it was time, in the name of the people who suffered, to ensure that the ILO redressed its constructive approach and focused on responsibilities and protection.

The Government member of the Russian Federation stated that, being convinced of the need to eradicate forced labour in the world, his Government welcomed the extension, for a further 12 months, of the Supplementary Understanding trial period following an ILO high-level mission to Myanmar in January 2010. He expressed his Government’s sincere appreciation to the ILO Liaison Officer for his constant and self-sacrificing efforts to implement the above Understanding. As a result of these efforts, more than 100 complaints on alleged cases of forced labour had been examined by the competent bodies including the Ministry of Defence, and in a number of cases efficient measures had been adopted.

The speaker noted with satisfaction the carrying out of joint seminars and visits to remote regions of the country, the dissemination of the text of the Supplementary Understanding translated into the local language, the publication in central newspapers of articles describing the complaints mechanism and the agreement reached with the authorities about the publication of a special brochure on this subject. However, there was an evident need for the Government to take additional measures to eradicate forced labour, particularly at the local level. The extension and deepening of the constructive cooperation between the ILO and the Government constituted the most efficient mechanism in order to move towards the fastest possible resolution of the forced labour problem in Myanmar and the implementation of Convention No. 29.

The Worker member of Italy indicated that the move to recruit a new staff member of the Liaison Office with financing from the Government of Germany was a positive development, although additional measures were necessary like the opening of offices in other parts of the country. However, despite the availability of funding as well as the Government’s agreement and its undertaking to eradicate forced labour, the Government continued to stall any progress regarding the appointment of the new officer on the pretext of having to issue a visa. While investors never faced problems with their visas, the delegates to the Conference had to face insulting and evasive excuses year after year for the lack of implementation of the Government’s commitments. This was just one example of the delaying tactics of the regime, contrary to the spirit of cooperation that the authorities had repeatedly promised.

The brochure on the eradication of forced labour, despite being a positive step forward, had only been published in the Burmese language and not in ethnic languages as called for by the Committee of Experts, since forced labour was mainly prevalent in areas where the majority of the population read and wrote in their respective ethnic languages. In order to inform and support those who suffered the most from the practice of forced labour, information brochures should be translated into the main ethnic languages and illustrations should be included for those who could not read, as they were the most vulnerable to exploitation. It would be interesting to know how these brochures would be distributed as widely as possible. The stalling tactics of the authorities, including the delays in issuing visas, should no longer be regarded as legitimate excuses for the slow pace of progress. There had been more than enough time. The ILO and its constituents should evaluate the intentions of the authorities, and the ILO’s capacity to investigate and monitor forced labour should be strengthened.

The Government member of India expressed his Government’s satisfaction at the progress being made in the observance of Convention No. 29 by the Government of Myanmar as well as the ongoing cooperation between the Government and the ILO in this matter. Encouraging recent developments included most importantly the extension of the Supplementary Understanding for a further period of 12 months and the constructive dialogue that the ILO delegation to Myanmar had with the Government in January 2010. This could serve as an important basis in further strengthening the ongoing cooperation and help in the implementation of the provisions of the Convention. The awareness workshops jointly conducted by the Liaison Office and the Labour Department, and the publication of the Supplementary Understanding and a brochure on the law pertaining to forced labour by the Government had the potential to play an important role in eliminating the practice of forced labour. Finally, the mutually agreed mechanisms, including the complaints mechanism, were functioning properly.

The debate in the Committee should take place in a fair and transparent manner and focus on the matter in hand relating to the observance of Convention No. 29. Introduction of issues extraneous to the subject or unnecessary politicization of the debate would deviate the focus of the Committee from the merits of the case. India had consistently encouraged dialogue and cooperation between the ILO and the member States to resolve all outstanding issues. India had been and continued to remain strongly opposed to the practice of forced labour which was expressly prohibited under its Constitution. The speaker concluded by commending the ILO Director-General and his team for their efforts in assisting Myanmar to tackle the problem of forced labour.

The Worker member of France referred to another provision of the national legislation that required amendment, namely section 359 of the Constitution. That section provided for a number of exceptions to the prohibition on forced labour, and its wording rendered that prohibition ineffective. By allowing “work imposed by the Government in the general public interest” that constitutional provision reinstated the Towns Act and the Village Act. The speaker stressed that although the Constitution had been approved by more than 92 per cent of the voters participating in the referendum, the conditions under which that referendum had been held were very controversial. General recourse to forced labour could not be isolated from the general situation of human rights in Myanmar, which was characterized by systematic violations of rights and freedoms. Forced labour could, therefore, be eradicated only by instauration of democracy and the legislative elections that were to be held soon would serve as a test in this regard. A series of restrictive electoral laws had already been adopted, which would prevent the opposition from freely participating in that process. Myanmar had reached a crucial turning point, which should not be used by the authorities as an excuse for maintaining an intolerable situation but, on the contrary, allow it to prove its political willingness to eradicate forced labour. The international community should remain particularly attentive to future developments.

The Government member of China noted that the Government of Myanmar and the ILO had cooperated effectively since the last session of the Conference and there had been a certain progress in the elimination of forced labour. This included the extension of the trial period for the Supplementary Understanding, the efficient handling of complaints, the publication of a brochure on the elimination of forced labour and the corresponding legislation and the appearance of articles on the subject in the national press. The Government of China continued to consider forced labour as a fundamental violation of human rights, and it was to be hoped that the ILO would be able to maintain its technical assistance to Myanmar, notably in the form of cooperation projects on employment creation that could improve people’s quality of life. He trusted that the future would bring new projects aimed at eliminating forced labour in Myanmar.

The Worker member of Zimbabwe compared the anguish of the workers of Burma to that suffered in his own country, as attested by Commissions of Inquiry appointed for the two countries. He explained that although forced labour in his part of the world existed as a result of ingrained habits or wars and rebellions, and was mostly practised by private individuals and not at a large scale, forced labour in Burma was widespread, systematic and promoted and practised at all levels of the State by the military and civilian authorities. Forced labour in Burma took many forms, such as forcing villagers, including children, to grow food, build bridges and roads, construct and maintain army camps, build security fences, carry equipment for troops; forcibly displacing villagers from their land in areas where oil and gas infrastructure and pipelines were being construed and operated; putting prisoners to work in leg irons without wages, without access to medical treatment or other basics of life; forcibly recruiting child soldiers, in a context of the barbaric practice of human minesweeping; and forcing citizens to build and maintain tourism sites and facilities in larger cities like Mandalay and Rangoon, to enrich top military leaders whilst the soldiers suffered economic hardship. The military forced civilians into labour through intimidation, kidnapping and threat of arrest or bodily harm. This inhumane, degrading and back-breaking treatment also led civilians to lose wages and land, and many became sick from disease, malnutrition or exhaustion without medical assistance. All of these claims were backed by the extensive evidence submitted by the ITUC to the ILO, including copies of 100 Government Orders issued to village heads to gather workers from local communities for forced labour. As the Committee of Experts had concluded, this was conclusive evidence of the systematic imposition of forced labour, and it was conclusive evidence to which the Burmese Government had not even bothered to respond. It was about time that the Government undertook a real engagement to end the unsavoury use of systematic forced labour and start implementing the recommendations of the ILO supervisory bodies. A first and immediate step should be to ensure that the law prohibited forced labour.

The Government member of Cuba observed that the report of the Liaison Officer on the latest activities carried out by the ILO and the Government of Myanmar described the progress made towards the elimination of forced labour and the difficulties that remained to be resolved. He noted the statement of the Government of Myanmar outlining the steps that were being taken in that direction. It was clear that the results that had been achieved so far were the fruit of the ILO’s technical cooperation and of the bilateral dialogue with the Government. It was to be hoped that the technical cooperation and the open and unconditional dialogue between the Government of Myanmar and the ILO would be pursued, so that a proper analysis could be made of the conditions and circumstances prevailing in the country, as that was the only way to further the goals of Convention No. 29.

The Worker member of Pakistan observed that it was very sad and discouraging that in the twenty-first century, known as the age of reason, technological development and social justice, the military still used forced labour in Burma, which was a crime against humanity, after ten years of discussions on this issue. Nowhere was it shown that penalties had been imposed on those who had committed the crime of forced labour or that they had been brought to justice. Paragraph 8 of the report of the Liaison Officer referred to the difficulties encountered in obtaining proof of under-age recruitment and the hardship of the families who had to fetch their children from their regiments at considerable expense, leading them to sell their harvest in advance, borrow money or sell assets. In order to cope with the increasing workload, the capacity of the Liaison Office needed to be strengthened but despite the availability of funds from Germany, the Government had not granted a visa to an additional official. Those who helped the victims were themselves victimized. Paragraph 16 of the report of the Liaison Officer indicated that two lawyers who were active supporters of the Supplementary Understanding procedures had lost their licences to practise after their release from prison. In such circumstances, the speaker associated himself with the members who called for more action by the international community and the reinforcement of the Liaison Office, so that wider investigations could be carried out and appropriate penalties enforced against those who committed the crime of forced labour.

The Government member of Canada commended the Liaison Officer and his deputy for their continuing diligence and admirable work. Every year the Committee was confronted with the modest accomplishment that the Government of Myanmar offered to conform to its commitments to address issues of forced labour, including under-age military recruitment in Burma. In spite of the fact that the Understanding had been signed eight years ago and the Supplementary Understanding over three years ago, the pace of progress was frustratingly slow. While some positive steps which had been noted in the report of the Liaison Officer should be welcomed and encouraged, they were incremental and did not reflect a strong commitment by the regime to eliminate forced labour. There was an urgent need for more significant progress.

Areas remained where the Government’s failure to meet its commitments was fundamentally unacceptable and should be noted with greatest concern, notably the continued allegations of harassment of complainants, facilitators and their legal counsel as well as the refusal to receive complaints of human trafficking for forced labour. The speaker condemned any reprisals against complainants, particularly imprisonment, and called upon the Government to comply with its commitment to address forced labour in all its forms and provide support for the implementation of the full mandate of the ILO Liaison Officer. She also associated herself with other members who considered that the report of the Liaison Officer fell completely within its intended mandate. Finally, the speaker urged the Government of Myanmar to expedite the request for further assistance to manage the considerable caseload and meet demands, such as training and awareness raising, on an urgent basis. It was unfortunate and discouraging that the Government had to be urged once again to issue immediately the visa for an additional staff member and an update on the status of this question would be welcomed.

In conclusion, the speaker strongly urged the Government of Myanmar to take proactive and substantial steps to ensure compliance with Convention No. 29 throughout the country, including through the imposition of more meaningful penalties for all perpetrators of forced labour. The speaker also called on the authorities to release all political prisoners and detainees, notably Daw Aung San Suu Kyi.

The Government representative thanked those speakers who had made their interventions objectively and took note of their comments. Some of the interventions had been based on groundless information and were politically motivated. There were also some remarks that were not relevant to the work of the ILO. Some speakers had been referring to the country by its incorrect name. The official communications from the United Nations and its agencies addressed the country correctly as Myanmar, as this name had been recognized throughout the UN system. The importance and seriousness of the work carried out in the ILO should be reciprocated by the speakers. The use of inappropriate language did not serve any purpose, was not well intentioned and showed a lack of respect. A code of conduct should be enforced during the deliberations in this regard.

Some remarks had not been relevant to the work of the ILO. The Government of Myanmar rejected all undue comments and criticism concerning the home-grown political process. The destiny of Myanmar was to be decided by its own people. The democratization process was moving forward steadily and democratic elections would be held this year, as the fifth step in the road map to democracy. Laws necessary for multiparty general elections had already been promulgated. Over 20 political parties had been registered so far for the upcoming elections. The Constitution, approved by 92.48 per cent of eligible voters in Myanmar, would be the basis for the democratic society of the future. This clearly reflected the political will of the people.

The amendment of the Village Act and Towns Act had been explained repeatedly in previous sessions of the Conference. Under the Myanmar legal system, orders of the legislative authority had the force of law. This was the case for Order 1/99 and its Supplementary Order. Thus, in the Myanmar legal system the offending provisions of the two Acts had been put into dormant state or had even been annulled, as acknowledged by the Committee of Experts in the past. At the plenary session of the 98th International Labour Conference, the Government representative of Myanmar had mentioned that these conclusions were due to a misunderstanding as to the facts. He had taken the matter up with the Office and had provided explanations to the officials concerned.

The speaker concluded by adding that the representative of the FTUB and his friends were responsible for endangering and violating the security of the Myanmar people. The Government had concrete evidence that they were plotting, financing and carrying out several activities including bomb attacks in the country leading to loss of lives and numerous injuries. Such terrorists had no place in the work of the ILO.

The Employer members observed that the Government of Myanmar did not seem to appreciate the fact that it was not even close to abolishing forced labour. The Government should not be under the false impression that the Supplementary Understanding process was sufficient in itself. It was at best an internal process that should not absolve the Government from the obligation of full and complete implementation of policies and practices for the abolition of forced labour.

The Worker members concluded by asking for the immediate release of all trade union activists and political prisoners who had exercised their freedom of expression and fought against forced labour; the immediate discontinuation of harassment and detention of persons who filed complaints on forced labour; and the end of the impunity enjoyed by the perpetrators of forced labour. They recalled that it was essential to implement the recommendations of the Commission of Inquiry and to revise the provisions of the Constitution relative to forced labour. Moreover, the decisions taken in the past should be implemented, notably: the re-examination of the implementation of the 2000 Conference resolution; the request made to international institutions, governments and organizations of employers and workers to report on the steps taken in the framework of that resolution; the organization of a conference on best practices aimed at implementing the resolution; and the implementation of other international penal measures with a view to sanctioning those who exacted forced labour. To this end, the Worker members requested the Liaison Officer to focus on the implementation of the recommendations of the Commission of Inquiry and on the reinforcement of the means at the disposal of the ILO: increase in the number of offices and establishment of a network of facilitators in the country. Finally, the Worker members condemned and repudiated the statement of the Government representative with regard to the representative of the FTUB.

Conclusions

The Committee noted the observations of the Committee of Experts and the report of the ILO Liaison Officer in Yangon that included the latest developments in the implementation of the complaints mechanism on forced labour established on 26 February 2007 with its trial period extended, on 19 January 2010, for a further 12 months to 25 February 2011.

The Committee also noted the discussions and decisions of the Governing Body of November 2009 and March 2010. It further took due note of the statement of the Government representative and the discussion that followed.

The Committee acknowledged some limited steps on the part of the Government of Myanmar. It noted the further extension of the Supplementary Understanding for another year; the agreement for publication and distribution of an informative brochure on forced labour; certain activities concerning awareness raising of the complaints mechanism established by the Supplementary Understanding, including newspaper articles in the national language; and certain improvements in dealing with under-age recruitment by the military. The Committee was however of the view that these steps remained totally inadequate.

The Committee noted that despite these special sittings, none of the three specific and clear recommendations of the Commission of Inquiry had been implemented. These recommendations require the Government to: (1) bring the legislative texts in line with Convention No. 29; (2) ensure that in actual practice forced labour is no longer imposed by the authorities; and (3) strictly enforce criminal penalties for the exaction of forced labour.

The Committee also noted that the complaints mechanism reached only limited parts of the country and its functioning could be an indication that there had been any significant diminution in the use of forced labour.

The Committee emphasized the importance of the conclusions reached in its special sittings at the 97th and 98th Sessions of the Conference (June 2008 and June 2009), and again placed emphasis on the need for the Government of Myanmar to work proactively towards the full implementation of the recommendations of the Commission of Inquiry appointed by the Governing Body in March 1997 under article 26 of the Constitution. It also recalled the continued relevance of the decisions concerning compliance by Myanmar with Convention No. 29 adopted by the Conference in 2000 and 2006 and all the elements contained therein.

The Committee fully supported all of the observations of the Committee of Experts and the decisions of the Governing Body referred to above, and expressed the firm expectation that the Government of Myanmar moves with urgency to ensure that the actions requested are carried out at all levels and by all civil and military authorities.

The Committee strongly urged the Government to fully implement without delay the recommendations of the Commission of Inquiry and the comments and observations of the Committee of Experts. The Government in particular should:

(1) take necessary steps to bring the relevant legislative texts, in particular the Village Act and Towns Act, into line with Convention No. 29;

(2) ensure that legislation foreseen by paragraph 15 of Chapter VIII of the new Constitution is developed, adopted and applied in full conformity with Convention No. 29;

(3) ensure the total elimination of the full range of forced labour practices, including the recruitment of children into the armed forces and human trafficking for forced labour, that are still persistent and widespread;

(4) strictly ensure that perpetrators of forced labour, whether civil or military, are prosecuted and punished under the Penal Code;

(5) ensure that the Government makes the necessary budget allocations so that workers are freely contracted and adequately remunerated;

(6) eliminate the continuing problems with the ability of victims of forced labour or their families to complain and immediately cease all harassment, retaliation and imprisonment of individuals who use, are associated with or facilitate the use of the complaints mechanism;

(7) release immediately complainants and other persons associated with the use of the complaints mechanism who are currently detained;

(8) facilitate the production and wide distribution of the brochure in the ethnic languages;

(9) intensify awareness-raising activities throughout the country, including training to military personnel to end under-age recruitment; and

(10) actively pursue agreement of a joint action plan with the Country Task Force on Monitoring and Reporting in respect of children in circumstances of armed conflict, of which the ILO is a member, to address amongst other things under-age recruitment.

The Committee called for the strengthening of the capacity available to the ILO Liaison Officer to assist the Government in addressing all of the recommendations of the Commission of Inquiry, and to ensure the effectiveness of the operation of the complaints mechanism, particularly in respect of the urgent issuance of an entry visa for an additional international professional as a priority and without delay.

The Committee specifically called on the Government of Myanmar to take every opportunity, including through the continued use of all of the available forums, to increase the awareness of the people (the civil and military authorities as well as the general public) as to the law against the use of forced labour, to their rights and responsibilities under that law and of the availability of the complaints mechanism as a means of exercising those rights. An authoritative statement at the highest level would be a significant step in this regard.

The Committee regretted with serious concern the continued human rights violations in Myanmar, including the detention of Daw Aung San Suu Kyi. The Committee urged her immediate release as well as that of other political prisoners and labour activists.

The Committee called on the Government to investigate, without further delay, the allegations of forced labour orders and similar documents which had been submitted to the Committee of Experts and encouraged the Government to communicate to the Committee of Experts, for its next session, its findings and any consequential concrete actions taken. The Committee expected to be in a position to take note of significant developments at the next session of the Conference.

Not reproduced:

Document D.5

B. Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29), by Myanmar

C. Report of the Liaison Officer to the special sitting on Myanmar (Convention No. 29) of the Committee on the Application of Standards, and register of cases as of 17 May 2010

D. Conclusions adopted by the Committee on the Application of Standards in its Special sitting to examine developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) (International Labour Conference, 98th Session, June 2009)

E. Documents before the Governing Body at its 306th Session (November 2009) and conclusions of the Governing Body

F. Documents before the Governing Body at its 307th Session (March 2010) and conclusions of the Governing Body

Individual Case (CAS) - Discussion: 2009, Publication: 98th ILC session (2009)

A. Record of the discussion in the Committee on the Application of Standards

A Government representative of Myanmar said his delegation was pleased to join the commemoration of the 90th anniversary of the International Labour Organization which focused on "90 years working for social justice". He commended the Director-General of the ILO on his effective and timely leadership of the International Labour Office in these challenging and difficult years and in advancing the work of the Organization substantially in response to the needs of the present financial and economic crisis.

He pointed out that the 304th Session of the Governing Body had welcomed the further extension of the Supplementary Understanding for a one-year trial period, which had been reflected in the report of the ILO Liaison Officer. In his Global Report on the Cost of Coercion, 2009, the Director-General of the ILO had also considered that the response of the Government of Myanmar to the complaints mechanism had been "positive". In response to the requests made by the 97th Session of the International Labour Conference and the 303rd Session of the Governing Body, regarding the highest level statement of the Government on forced labour, he reiterated that the statement made by the Minister of Labour following the extension of the Supplementary Understanding was the highest level statement of the Government on the elimination of forced labour. He added that the provisions of the Constitution clearly showed the high-level commitment on the eradication of forced labour.

The speaker further informed the Committee that, in follow-up to the requests made by the 97th Session of the International Labour Conference and the 303rd Session of the Governing Body, the texts of the Supplementary Understanding and its related documents had been translated into Myanmar language; 10,000 copies of the booklet had been widely distributed to the civilian and military authorities nationwide, the United Nations (UN) Agencies, the non-governmental organizations (NGOs), the intergovernmental organizations (INGOs), political parties and the general public for awareness-raising purposes. A total of 20,000 additional copies of the booklet were being produced for further distribution nationwide.

With regard to the complaints received by the ILO Liaison Officer, he stated that out of the 87 cases forwarded by the Officer to the Working Group for Prevention of Forced Labour, 12 had already received a reply after the necessary investigation conducted by the authorities; 64 cases had been closed. Only 11 cases were still under investigation with the collaboration of the departments concerned and would be finalized in the near future. He added that the Ministry of Labour was cooperating with the ILO Liaison Officer in arranging field visits in accordance with the Supplementary Understanding. The Liaison Officer had been able to travel throughout the country and observe the situation on the ground. A joint mission had been undertaken by the Ministry of Labour and the ILO Liaison Officer to the Hpan-an Township of Karen State on 27 April 2009, and to the Lashio Township of Northern Shan State on 7 May 2009. These two missions had proved the Government's willingness to implement the Supplementary Understanding. During these missions, joint awareness-raising workshops had been held on the eradication of the practice of forced labour and the Director-General of the Department of Labour and the ILO Liaison Officer had given lectures concerning the implementation of Convention No. 29 to the members of the District and Township Peace and Development Council, officials from the Department of Prison, representatives from the Myanmar Police Force and the Immigration Department, officials and staff of the Ministry of Defence, and nine representatives from national "ethnic" groups which had returned to the legal fold. In addition, the ILO Liaison Officer had given a lecture on 2 April 2009, on international and national law relating to forced labour at the annual Deputy Township Judges Training Course.

The speaker further highlighted that the labour-intensive employment project which had been launched by the ILO in the cyclone affected areas of the Delta region, was another good example of cooperation between the Government and the ILO. The objective of the project was to provide temporary decent employment to the most needed victims of the cyclone, adding value to the interventions of the other international agencies, including the Food and Agriculture Organization and the United Nations Development Fund. The project, which included the development of 60 villages in the Mawlamyine Gyun Township, was being funded by the Department for International Development (DFID) of the United Kingdom. The first stage of the pilot project, including the construction of seven kilometers of village and inter-village tracks, two jetties and five small bridges and 40 lavatories in ten villages, had been completed on 15 March 2009. Job opportunities had been created, for 7,802 workers, including 1,437 skilled labourers and 6,365 general workers in this area. Stage two of the project work plan, which covered the development of 20 villages and 12 village tracks, was being undertaken since February 2009 and included the construction of 50 bridges, 23 jetties and concrete footpaths. Altogether, 5,849 skilled labourers and 65,979 general workers had been involved in this second stage of the project, a total of 71,828 jobs had been created for the local population. Therefore, he wished to take this opportunity to extend his appreciation to the ILO on its constructive efforts in advancing the livelihood of the people in the cyclone affected area.

In response to the matter regarding the under-age recruitment mentioned in paragraph 4 of the conclusions of the 97th Session of the International Labour Conference in 2008 and paragraph 3 of the conclusions of the 303rd Session of the Governing Body of 2008, he informed the Conference Committee that Myanmar attached great importance to the protection and promotion of the rights of the child. It was a State party to the Convention on the Rights of the Child since 1991. Military service was voluntary in Myanmar, but a person could not enlist in the armed forces before 18 years of age. He further mentioned that the Myanmar Government had established a High-level Committee for the Prevention of Military Recruitment of Under-age Children on 5 January 2004, to address this issue effectively. This Committee, which had been reinstituted on 14 December 2007, had adopted a Plan of Action which included recruitment procedures, procedures for discharge from military service, reintegration in society, public awareness measures, punitive action, reporting measures, submissions of recommendations and consultation and cooperation with international organizations. A Working-level Committee of the Monitoring and Reporting Task Force on Prevention of Recruitment of Minors into the Military had been established in 2007. It coordinated courses on the prevention of recruiting child soldiers in the State and Division Commands in 2008, which had been attended by 1,308 officers and other ranks.

He further informed the Conference Committee that 83 under-age children had been rejected from the military and had been properly handed over to their respective parents and guardians. Disciplinary actions had been taken against those who had recruited under-age persons into the armed forces. Altogether, 44 armed forces personnel, including ten officers and 34 other ranks, had been charged for irregular recruitment. In this context, he particularly wished to inform the Conference Committee of a ceremony held on 2 June 2009, by the Working Committee for Prevention Against Recruitment of Minors at Mingaladon Station, to hand over eight minors, who had joined the Tatmadaw (Armed Forces) of their own accord, to their parents.

He concluded by stating that the abovementioned developments had clearly demonstrated the sincere cooperation of the Government of Myanmar with the ILO. His Government had shown its political will, and had been and would be cooperating with the ILO in a constructive manner with a view to eradicating the practice of forced labour in the country.

The Employer members expressed the view that there continued to be very limited progress with regard to Myanmar's ongoing failure to implement Convention No. 29. The Government continued to play the diplomatic game of doing just enough to create an appearance of cooperation, but the Committee remained unconvinced. Despite an apparent real and sustainable desire to end forced labour, there was still a fundamental lack of civil liberties in Myanmar, in particular, the right to freedom and security of the person, freedom of opinion and expression, freedom of assembly and association, the right to a fair trial by an independent and impartial tribunal and protection of private property. Furthermore, there was still a substantial climate of fear and intimidation of citizens. Those were the root causes of forced labour, child labour, child soldiers, discrimination and the absence of freedom of association.

In 2008, the Committee had discussed two events of significant impact on the framework in which ILO activities were carried out: the civil unrest and its suppression in September-October 2007, and the devastation caused by cyclone Nargis in early May 2008. The present discussion was taking place against a background that further highlighted the lack of civil liberties, including the "pretextual" trial and continued house arrest of Aung San Suu Kyi. Although U Thet Wai had been released from a severe prison sentence, U Zaw Htya, another facilitator of complaints under the Supplementary Understanding, his lawyer Ko Po Phyu, and other individuals continued to be held in jail. All persons should have access to the complaints mechanism without fear of harassment or retribution.

He further stated that each ILO body that had discussed the case had focused attention on the recommendations of the Commission of Inquiry. The Committee of Experts, in previous observations, had identified four areas in which measures should be taken by the Government to implement those recommendations: issuing specific and concrete instructions to the civilian and military authorities; ensuring that the prohibition of forced labour was given wide publicity; providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and ensuring the enforcement of the prohibition of forced labour.

The Employer members welcomed the extension of the trial period of the Supplementary Understanding. The number of complaints made through the mechanism it established had increased, but fundamental practical problems persisted in the physical ability of victims and their families to file complaints and for the ILO Liaison Officer and his team in carrying out their duties. The continued detention of a number of persons associated with the application of the complaints mechanism remained a matter of serious concern. The low level of complaints made through the complaints mechanism indicated that citizens might not have adequate access to it or might not feel that they had the freedom to file complaints. As of mid-May 2009, 152 complaints had been filed. Five had not been acted upon through fear of retribution; 95 had been referred to the Government, of which only 23 had yielded concrete results; and a further 70 cases had been closed by the Government but, in 13 of those, the Government's sanction was viewed as inadequate or recommendations for further solutions had been rejected.

The Employer members welcomed the Government's approval of the translation of the extension agreement, the production of the booklet containing the texts of the Supplementary Understanding and related documents, seminars to raise awareness among both civilian and military personnel and joint missions by the Ministry of Labour and the ILO Liaison Officer. The work carried out by the Liaison Officer was to be commended, given the difficult circumstances in the country, particularly in facilitating both dialogue between the ILO and the authorities in Myanmar and the functioning of the complaint mechanism. The awareness-raising seminars, which were to be held regularly throughout the country, were of the utmost importance.

In the view of the Employer members, the ILO had played a successful role in the rebuilding project in the Delta following the hurricane, demonstrating how good work practices and reconstruction efforts could be achieved without forced labour. They encouraged the Government to support further recovery projects that demonstrated good labour practices.

The Government of Myanmar needed to make additional efforts in a number of areas. It should approve a brochure on the functioning of the Supplementary Understanding in an accessible language, based on a draft ILO text. The continuing problems in the ability of victims of forced labour and their families to make complaints should be eliminated; given the size of the country, creating a network to facilitate complaints remained a necessity. The Government should issue an authoritative statement at the highest level confirming its policy for the elimination of forced labour and its intention to prosecute perpetrators. The Employer members welcomed the statement by the Ministry of Labour, but considered that a statement at the highest level by the Chairman of the State Peace and Development Council remained necessary. Those responsible for forced labour should be prosecuted under the Penal Code, as requested by the Commission of Inquiry. Since March 2007, the Liaison Officer had not been informed of any such prosecutions.

The recently adopted Constitution contained specific articles on the right to freedom of association, freedom of expression and the right to organize. One article banned the use of forced labour, but contained certain qualifications that raised doubts concerning its conformity with Convention No. 29. There needed to be a full and complete implementation of the Constitution in practice in accordance with Myanmar's obligations under Convention No. 29.

The Government remained far from applying the measures recommended by the Commission of Inquiry that, for example, legislative texts, particularly the Village Act and Towns Act, should be brought into conformity with the Convention, the authorities should cease to impose forced labour and the sanctions provided for imposing forced or compulsory labour be strictly applied. The implementation of those recommendations would be guaranteed if the Government took action in the four areas identified by the Committee of Experts; yet, according to the Committee of Experts' latest observation, the matters that needed to be addressed remained unresolved.

The Employer members urged the Government to provide full and detailed information as an unequivocal sign of its genuine willingness to cooperate with the Committee and the supervisory bodies. Transparency and collaboration with the Liaison Officer was essential. The Government was reminded that the agreement on the Supplementary Understanding and the creation of a complaints mechanism did not relieve it of its obligations under Convention No. 29. The Government needed to make tangible improvements in national legislation and provide sufficient funds so that paid labour could replace forced labour in the civil and military administration to demonstrate its unambiguous willingness to combat forced labour and bring an end to the climate of impunity. The situation in Myanmar had persisted far too long, particularly as it had ratified Convention No. 29 over 50 years beforehand. The Government of Myanmar needed to demonstrate a sense of humanity and end forced labour.

The Worker members regretted that the seriousness and persistence of forced labour in Myanmar had once again led the present Committee to hold a special session on this case. They feared that the Committee would once again be forced to observe only modest steps forward but giant steps backwards. They recalled that in 1997 a Commission of Inquiry had concluded unambiguously that Convention No. 29 was being violated by the Government in a widespread and systematic manner, both in law and in practice, and had formulated three recommendations: (1) that the legislation be brought into line with the Convention; (2) that in actual practice no more forced or compulsory labour be imposed by the authorities, in particular the military; and (3) that the penalties which may be imposed for the exaction of forced labour be strictly enforced. The Commission of Inquiry had also recommended four concrete measures to be adopted without delay: the issuing of specific and concrete instructions to the civilian and military authorities; ensuring that the prohibition of forced labour be given wide publicity; providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and ensuring the enforcement of the prohibition of forced labour. In March 2000, the failure of the Government to take action had led the ILO Governing Body to apply article 33 of the ILO Constitution. In spite of this, the Committee of Experts and the Conference Committee had only been able to observe, year after year, the persistent flagrant violation of Convention No. 29. Ten years later the abovementioned recommendations still had not been given effect in a satisfactory manner. Indeed, in the new draft Constitution, freedom of association was entirely subordinate to the laws ensuring the security of the State. Furthermore, the article that provides for the prohibition of "any forced labour" contained exceptions in cases of "obligations imposed by the State in the interest of the people", which effectively thwarted the purpose of the article and rendered it contrary to Convention No. 29. Ignoring the repeated requests by the Governing Body, the Government had still not officially made public its willingness to eradicate forced labour by means of a widely publicized statement. The few training courses on the prohibition of forced labour envisaged by the instructions addressed to civilian and military authorities had apparently not had a significant impact on the extent of forced labour. The Government had indicated that resources had been budgeted in all the Ministries to cover the cost of labour. This affirmation was contradicted by the persistence of the generalized use of forced labour by the military and local civilian administrations.

With regard to the official statement on the prohibition of forced labour and the enforcement of this prohibition, the Worker members considered that the Supplementary Understanding of February 2007, certainly constituted a step forward since it established a new mechanism for examining complaints with the intervention of the Liaison Officer; this improvement had limitations, however, since the Liaison Officer was only allowed to receive complaints and could not submit any himself. The mechanism was underutilized with only 152 complaints having been received until 15 May 2009, owing to the fact that it was still largely ignored by the population. Indeed the junta had waited two years before approving the translation of the Supplementary Understanding, had only disseminated up to 30,000 copies for a population of 50 million, and had still not published it in a language understood by the population. In reality, many complainants were being harassed, or even imprisoned, as was currently the case of former facilitators, U Min Aung, Ma Su Su Sway and U Zaw Htay, and the lawyer Ko Po Phyu. Many complaints remained pending, and no penal sanctions had been imposed since the establishment of this mechanism. The few military personnel who had been found guilty had been given only light administrative penalties. As the Liaison Officer had pointed out, it would be a mistake to consider the low number of complaints to be a reflection of the real situation as regards forced labour. In any case, it would be wrong to equate a mere means to an end - the complaints mechanism - with its purpose - the effective eradication of forced labour - or to consider the role of the Liaison Officer to be limited to the implementation of this mechanism. The main objective of this mission continued to be to secure the implementation of the three recommendations of the Commission of Inquiry. This mechanism in itself was indicative of two realities: the persistence of forced labour and the denial of democracy and freedom of expression. In this respect the Worker members recalled the ruthless repression of the peaceful demonstrations of September 2007, accompanied by the arrest and imprisonment of people desiring to exercise their fundamental right to freedom of expression and freedom of association. Referring to the conditions under which the 2008 referendum on the new draft Constitution had been held, they recalled that the Government had threatened to punish with three-year prison sentences any dissemination of leaflets, any speeches or other form of criticism; that monks, nuns, Hindu or Christian leaders, and Aung San Suu Kyi had been excluded from the referendum; and that the military had been granted 25 per cent of the seats in Parliament and the power of veto. Finally they mentioned the new arbitrary detention measure and the new trial against Aung San Suu Kyi. All of the above was evidence that the lack of democracy and forced labour existed side by side and that forced labour would only be eradicated through the reinstatement of the principles of democracy, and in particular freedom of association.

The Worker members also felt that the present case should not be reviewed in a historical vacuum and wished to recall the events since the last session of this Conference Committee. Shortly after the special sitting in June 2008, a judge on the Supreme Court of Myanmar rejected the appeals of six trade union activists who had been convicted to heavy prison terms for having met to discuss labour rights. In November 2008, labour rights activist Su Su Nway, who had filed a forced labour complaint under the Supplementary Understanding and had peacefully supported the Saffron Revolution of 2007, was sentenced to prison. Two months ago, the authorities arrested several members of the Federation of Trade Unions in Burma (FTUB) for participating in their organization's congress. The military regime only released them and their family members owing to the pressure exercised by the worldwide labour movement and a number of Governments. Recently, in a manoeuvre to avoid any threat for the 2010 elections, the junta subjected Aung San Suu Kyi to a ridiculous show trial with the risk of five years of prison. The recent examples illustrated once again the chronic bad faith of the Government in relation to democracy, human rights and core labour standards including Convention No. 29. The Worker members expressed their conviction that only a robust response from the ILO, the Conference Committee and the entire international community could bring change.

In its conclusions of last year, the Conference Committee had expressed hope that rehabilitation and reconstruction work in the wake of the cyclone Nargis would be undertaken without forced labour. This year's report of the Committee of Experts highlighted, however, forced labour exacted for reconstruction purposes, forced quarry work, forced cutting of trees and rebuilding of roads, and forced appropriation of money for so-called "donations". Last year's conclusions further referred to the need for a high-level statement on eradication of forced labour and the prosecution of perpetrators. According to the report of the Liaison Officer, the Government continued to fail in this respect. In its conclusions, the Conference Committee had also expressed concern about the provisions concerning forced labour in the newly adopted Constitution. The Committee of Experts deplored that the new Constitution still permitted forced labour in case of duties assigned by the State in accordance with law and in the interest of the people. Furthermore, the conclusions of the Conference Committee had condemned the widespread recruitment of children into the armed forces. The Committee of Experts found no proof that the education of military forces asserted by the Government had actually taken place. Evidence was, however, found that children continued to be conscripted in many villages over the last year, not to mention the horrific practice of the military, including battalion No. 545, of forcing villagers to act as human minesweepers. In addition, the conclusions of the Conference Committee had denounced the ongoing impunity of military for violations of the prohibition of forced labour, as well as the limited resources of the ILO Liaison Officer, the urgent need for a strengthened network of facilitators to collect and investigate reports of forced labour and the harassment of complainants and facilitators. The 2009 report of the Committee of Experts revealed no change in the situation. Notwithstanding the admirable and tireless efforts of the Liaison Officer, the ILO was denied investigative access to many areas of the country, and the number of cases of blatant retaliation against complainants was increasing. Lastly, the conclusions of the Conference Committee had demanded the release of several labour activists and Aung San Suu Kyi, but they had only been honoured in their breach.

The Worker members considered that this total disregard of the Conference Committee's conclusions threatened the very legitimacy of this forum and of the ILO, and was therefore intolerable. Although the Governing Body had decided in March 2007 to defer the question of an advisory opinion by the International Court of Justice (ICJ) "until the necessary time", another basic query could be whether the required cooperation and progress in the implementation of the recommendations of the Commission of Inquiry "met the relevant threshold". They considered that no reasonable person could give an affirmative response to this question.

The Government member of the Czech Republic, speaking on behalf of the Governments of member States of the European Union, the candidate countries of Croatia, The former Yugoslav Republic of Macedonia and Turkey, the countries of the Stabilization and Association process and the potential candidates Albania and Montenegro, the European Free Trade Association countries Iceland and Norway, and the members of the European Economic Area, as well as Ukraine, the Republic of Moldova and San Marino, expressed his concern about the human rights situation in Myanmar, which had remained on the agenda of relevant bodies of the United Nations and the ILO for many years. The continued arbitrary arrest of, unfair court proceedings against and severe prison sentences for political activists and human rights defenders including leaders of the labour movement were serious breaches of fundamental human rights standards. He deeply regretted that Aung San Suu Kyi, leader of the National League of Democracy, and members of her household had been arrested and charged with breaching the terms of her detention, which the United Nations had concluded to be a violation of international and national law. It was particularly striking that these events coincided with the expiry of her house arrest. This position was shared by practically all actors in the international community. The European Union repeatedly expressed grave concerns about the non-compliance of Myanmar with Convention No. 29, which was an extremely serious case and on the agenda of the Committee of Experts for more than 30 years.

Turning to the implementation of the Supplementary Understanding of 2007 concluded between the ILO and the Government for Myanmar, he stated that the European Union had welcomed the second extension of the trial period of this Understanding which was intended to help establish an effective complaints mechanism for victims of forced labour seeking redress. While he was happy to learn from the Liaison Officer's report that 30,000 copies of the booklet containing the official translation of the Supplementary Understanding and related documents had been distributed, he considered this to be an insufficient number bearing in mind the size of the country and the seriousness of the problem. He urged again for the production and distribution of a simply worded brochure which would help to ensure that the prohibition of forced labour would be given wide publicity.

In the same context, he deeply regretted that there had still been no response to repeated calls from the ILO supervisory bodies for a widely published high-level statement reconfirming the commitment of Myanmar authorities to the elimination of forced labour. While acknowledging the statement of the Ministry of Labour at the occasion of the extension of the Supplementary Understanding, he did not consider it sufficient to fulfil the conclusions of the 303rd Session of the Governing Body in November 2008. It was of paramount importance that the Myanmar authorities reaffirmed in a public statement at the highest level the prohibition and penal sanctions against all forms of forced labour, including child soldiers and, as requested in the Committee of Experts' report, replaced the contradictory legal provisions, in particular in the Village Act and Towns Act, with an appropriate legislative and regulatory framework to give effect to the recommendations of the Commission of Inquiry and to comply with Convention No. 29. He urged the Myanmar authorities to adopt a more pro-active approach in this effort.

Like the Committee of Experts, he further regretted that the new Constitution, which was due to take effect next year, contained a provision, which might be interpreted in such a way as to allow a generalized exaction of forced labour from the population and therefore not in conformity with Convention No. 29. While regretting the lack of substantial progress on the ground, he noted with interest the positive aspects of activities such as meetings, trainings and seminars. At the same time, no further information had been given that, in practice, recourse to forced labour by the authorities, and in particular the military, had declined on account of instructions regarding the prohibition of forced labour, which the Government indicated had been conveyed to them.

He reiterated his full support and appreciation for the work of the Office and its Liaison Officer in assisting the Myanmar authorities to abolish the practice of forced labour in the country, and urged the authorities to facilitate the increase of staff of the Liaison Officer. Referring to the report presented by the Office to the 304th Session of the Governing Body in March 2009, he emphasized that the decrease in the number of new complaints to the Liaison Officer could not be taken as an indication of less incidence of forced labour throughout the country. He remained concerned about the number of people who had lodged complaints or acted as facilitators and who had recently been sentenced to lengthy prison terms. The European Union would continue to closely follow these cases of labour activists, as it was unacceptable that anyone could still be accused or receive more severe punishment for having contacts with ILO representatives.

He concluded by recalling that even multiparty elections would lack any credibility unless the Myanmar authorities released all political prisoners including Ms Aung San Suu Kyi and engaged in an inclusive and time-bound dialogue with the opposition and ethnic groups. Only a process that involved the full participation of the opposition and ethnic groups would lead to national reconciliation and stability. He called once more for full respect for human rights, including ILO fundamental principles and rights at work, such as the universal prohibition of all forms of forced labour.

The Government member of New Zealand, speaking on behalf of the Governments of New Zealand and Australia, expressed her appreciation for the continued dedication of the ILO Liaison Officer in promoting observance of Convention No. 29 by the Government of Myanmar. She wished to pay tribute to the achievements of the ILO Liaison Officer who had been able to build upon the solid foundation left by his predecessor and had furthered the imperative of eradication of forced labour in the country. Recent steps, albeit small ones, had been taken by the Government of Myanmar towards this goal, including the continuation of awareness-raising activities undertaken by the ILO Liaison Officer.

Nevertheless, there continued to be specific concerns about the willingness of the Government of Myanmar to address the forced labour problems that persisted on its territory. She urged the Government to let the complaints mechanism function unhindered as it was unacceptable that persons who were associated with complaints on forced labour through the mechanism continued to be harassed and detained. The Government was also urged to release those persons who were currently serving prison sentences because of their association with the enforcement of the Supplementary Understanding. The absolute commitment of the Government to the eradication of forced labour - wherever it appeared and in whatever guise - remained paramount. The Government needed to approach all of the cases transmitted to it under the complaints mechanism with gravity, good faith and objectivity. It needed to fulfil its international obligations under Convention No. 29 and to proactively enforce its own legislative prescriptions against the use of forced labour. She urged the Government of Myanmar to increase and enhance its dialogue with the ILO to strengthen the effectiveness of the mechanism.

Turning to the general human rights situation in the country, she stated that the Government continued to disregard basic human rights, and that her country as well as Australia had expressed grave concern about the recent trial and continued detention of pro-democracy leader Aung San Suu Kyi. This was another setback for political reform in Myanmar. New Zealand and Australia, along with the wider international community, had repeatedly urged the Government of Myanmar to release Aung San Suu Kyi immediately and to take meaningful steps towards democratic reform and national reconciliation. Both countries would continue to speak out on this issue at every opportunity. In conclusion, she urged the Government of Myanmar to work towards the full implementation of the recommendations of the Committee of Experts.

The Government member of Nigeria, having listened carefully to the statement of the Government of Myanmar and the deliberations of the Conference Committee, considered that considerable efforts still needed to be deployed by the Government of Myanmar to ensure conformity with Convention No. 29. He made a plea to the ILO to continue to exercise pressure and provide technical assistance, so that full compliance could be achieved in the near future.

The Government member of the United States thanked the Office for the detailed and candid report on the situation in Burma and commended the continued admirable work of the Liaison Officer under difficult circumstances. The ILO had again managed to maintain dialogue with the military authorities while steadfastly holding them to their voluntarily accepted legal obligations ensuing from the ratification of Convention No. 29, 54 years ago.

The Conference Committee was meeting in special session for the ninth consecutive year owing to the persisting failure of the Burmese regime to implement the clear recommendations of the Commission of Inquiry. It would continue to consider the case until: (1) the relevant legislative texts were brought into line with Convention No. 29; (2) forced labour was no longer imposed in practice by the authorities; and (3) criminal penalties for the exaction of forced labour were strictly enforced.

She welcomed the further extension of the Supplementary Understanding and certain positive steps acknowledged by the Governing Body, mainly related to raising awareness of the complaints mechanism. The report of the Liaison Officer further mentioned improvements in dealing with under-age recruitment and the distribution of publications concerning the Supplementary Understanding. Those modest steps, however, did not go nearly far enough towards eliminating the scourge of forced labour in Burma. She deplored that forced labour practices were still persistent and widespread. The relevant legislative texts, in particular the Village Act and the Towns Act, had not yet been amended, and the new Constitution contained a provision violating the Convention. Forced labour was still not punished as a criminal offence. Moreover, individuals who used or facilitated use of the mechanism continued to run the risk of harassment, retaliation and imprisonment. Awareness of the complaints mechanism remained low, especially in rural areas. Also, an authoritative statement at the highest level of government, reconfirming the prohibition of forced labour, was still needed. Finally, the Government continued to implement economic and agricultural policies that resulted in forced labour practices.

The speaker concluded that the situation remained extremely serious and that sustained measures continued to be required and should urgently be taken. As emphasized by the Committee of Experts, the only way to make real progress in the elimination of forced labour was for the Burmese authorities to unambiguously demonstrate their commitment to that goal by taking the necessary long-overdue steps to rectify, with the assistance of the ILO, the violations of the Convention identified by the Commission of Inquiry. She also expressed her hope that the regime would take the necessary measures to permit the Liaison Officer to supplement his staff.

The speaker deeply regretted that this special sitting took place under the shadow of grave concerns about the trial and detention of Aung San Suu Kyi and stressed that only a truly democratic government was in a position to guarantee human and workers' rights. In order to achieve a credible transition to democracy, she urged the military regime to immediately and unconditionally release Aung San Suu Kyi and all political prisoners, and begin a genuine and open dialogue with the Burmese people.

The Government member of China commended the close collaboration between Myanmar and the ILO, which had facilitated the adoption of concrete measures, such as extending the Supplementary Understanding by 12 months, organizing awareness campaigns on the elimination of forced labour, creating training programmes aimed at local authorities and the visits to various areas by the ILO Liaison Officer and government officials. He stressed also that the cooperation of the Government of Myanmar with other international organizations, such as UNICEF, demonstrated the Government's willingness to eliminate forced labour.

The Government member of Viet Nam felt that the written and oral information provided by the Government of Myanmar illustrated that considerable progress had been made since the last session of the Governing Body. The ILO Liaison Officer and representatives of the Ministry of Labour had jointly undertaken field missions and held workshops on forced labour. The Liaison Officer had given lectures to officials from various township departments, including judges, police and armed forces. Reconstruction and rehabilitation projects were under way in numerous villages and created jobs for the local people. At the same time, the Government sought to strengthen its law on the prevention of recruitment of children for military services and conducted training programmes and awareness raising in this regard. The abovementioned evidence showed the commitment of the Government of Myanmar to the elimination of the practice of forced labour in the country.

In his Government's view, a stimulation of the process of dialogue and close cooperation between the Government of Myanmar and the ILO, along with a greater involvement of the UN Country Team (UNCT), could bring about a positive outcome in the foreseeable future.

In conclusion, he expressed his Government's strong support for the continued cooperation and dialogue between the Government of Myanmar and the ILO. At the same time, he called upon both sides, including all stakeholders involved, to intensify their efforts and build mutual confidence, so as to ensure that forced labour in Myanmar would soon be eradicated.

The Government member of Japan appreciated the progress made by the Government of Myanmar in cooperation with the ILO and its Liaison Office. However, there remained room for stepping up efforts towards the full implementation of the Supplementary Understanding. First of all, the alleged cases of detention of forced labour complainants and facilitators should be appropriately addressed. Second, a simple explanatory brochure concerning the Supplementary Understanding should be approved and widely distributed so that the complaints mechanism could be fully utilized. Third, military and civil perpetrators of forced labour and under-age recruitment should be held accountable in a fair and strict judicial procedure. He urged the Government of Myanmar to take measures to address those issues and he supported the ILO's efforts to enhance its presence in the country by implementing not only the complaints mechanism but also rehabilitation projects in cyclone-affected areas. He strongly hoped that further improvements would be achieved by the Government of Myanmar in cooperation and dialogue with the ILO, and that democratization would be promoted with participation of all the parties concerned. In this regard, the speaker expressed his Government's deep concern over recent developments in the country. The Government of Japan would follow the situation closely, and sincerely hoped that the Government of Myanmar would address the situation appropriately, taking into account the voice of the international community.

The Government member of Cuba reaffirmed his Government's attachment to the principles laid down in Convention No. 29. He thanked the Government of Myanmar and the Liaison Officer for their reports, which provided an update of the activities carried out by the Office and the Government of Myanmar. The report gave evidence of the progress made and the activities being implemented to achieve the eradication of forced labour in Myanmar. The positive results achieved up to now had been the fruit of the technical cooperation and bilateral dialogue between the Government of Myanmar and the ILO. Therefore he continued to recommend that the technical cooperation and the transparent and genuine dialogue, in conjunction with an analysis of the local conditions and economic situation, be continued. This was the only way to help secure the objectives of Convention No. 29.

The Government member of Singapore stated that his delegation, at the 304th Session of the Governing Body, had welcomed the renewal of the Supplementary Understanding containing the mechanism for dealing with complaints on forced labour, and the agreement to hold regular awareness-raising field visits and seminars in Myanmar. His Government was pleased to learn that such awareness-raising events had been taking place, that they had been well received in many parts of the country and that several more were planned. He commended the diligent efforts of the ILO Liaison Officer in conducting those activities, along with lectures and training courses.

The speaker expressed satisfaction at the success of the pilot project, funded by the United Kingdom, that had been established in the area affected by cyclone Nargis. The project showcased a best-practice employment model against forced labour, as detailed in the Liaison Officer's report, providing participants with valuable knowledge on governance and community development and clearly demonstrating that such projects could be established without the use of forced labour.

There had been developments regarding the under-age recruitment of soldiers: all children, except two, who had been the subject of a complaint, had been discharged to their families. It had also been generally accepted by the authorities that any child recruited to the military, which was, by definition, illegal, could not be legally charged or sentenced as a deserter. Any who were found to have been so charged would be released and discharged, with their convictions quashed. Another positive development was the Government of Myanmar's agreement to review its prison manual with regard to its compliance with Convention No. 29 and its request for assistance from the Liaison Officer.

Such positive efforts and work by the ILO significantly advanced progress towards eliminating forced labour practices in Myanmar. Nevertheless, while urging the ILO to continue its work, his Government called on the Government of Myanmar to redouble its efforts and work expeditiously to instil greater awareness of the law against forced labour at all governmental levels and in all areas and to implement that law accordingly.

He considered that the fact that some other speakers had not referred to Myanmar by its proper name reflected political agendas that went beyond the competencies of both the Committee and the ILO as a whole and undermined the Committee's credibility. Nevertheless, the speaker expressed serious concern over recent events in Myanmar and stressed that dialogue remained the best way of making progress towards reconstructing the country.

The Worker member of Japan expressed her appreciation of the efforts of the ILO to improve the situation in the country. However, the achievements were small, and there was a lack of understanding on the side of the Burmese authorities as to the steps to be taken to ensure compliance. This was illustrated by the provisions of the new Constitution, which enshrined an unacceptable exemption from the prohibition of forced labour. A revision of the new Constitution in this respect was vital. Moreover, local authorities had recently forced farmers owning more than one acre of land to plant jatropha. Farmers refusing those instructions had been fined, beaten and arrested. Another example of forced labour was the under-age recruitment.

The speaker emphasized that the elimination of forced labour was closely linked to the democratization process. The first and foremost step towards democracy should be the release of Aung San Suu Kyi and more than 2,100 political prisoners including labour activists. The ILO resolution of 2000 had recommended that member States review their relations with the Government of Myanmar so as not to give undue advantage to a country continuing to use forced labour. However, the resolution was far from being implemented properly, considering that foreign investment in Burma had increased as compared to 2007. Substantial funds had recently been attributed to the mining sector, out of which most of them had been injected by China. A total of US$15 billion had so far been invested by 29 countries, of which Thailand held the first place, followed by the United Kingdom, Singapore and China, with Japan being 13th in the ranking. There was no doubt that such economic activity helped the Burmese regime to continue to oppress the people and exact forced labour. The speaker urged member States investing in the country to review their relations with the Burmese Government. She invited the Office to prepare for the possibility of submitting to the ICJ a request for an advisory opinion concerning the violation of Convention No. 29 and the non-compliance with the recommendations of the Commission of Inquiry.

The Government member of Thailand, sharing the concerns relating to the issue of forced labour, was pleased that the Government of Myanmar and the ILO had continued their close dialogue and cooperation to address this issue. He was encouraged by the developments in Myanmar which reflected the commitment of the Government to implement the conclusions of the 304th Session of the Governing Body in March 2009 and welcomed the joint field visits conducted by the ILO Liaison Officer and the Ministry of Labour. He hoped that the booklet on the text of the Supplementary Understanding, now that it had been distributed, would be fully utilized in ensuring understanding of rights and responsibilities among all relevant stakeholders and the general public in Myanmar. Furthermore, he noted with great satisfaction the cooperation between the Government of Myanmar, the UN agencies and the international community in the post-Nargis recovery efforts. This had clearly demonstrated the commitment and willingness of the Government in addressing the needs of the people affected, and he was pleased with the rehabilitation and reconstruction work in the Delta region. The community-driven and labour-based project had created many job opportunities. It was hoped that these processes could be further enhanced through the effective implementation of the complaints mechanism contained in the Supplementary Understanding in order to achieve the eradication of forced labour in Myanmar. In conclusion, he encouraged the Government to work closely with the ILO in fulfilling its obligations under Convention No. 29, and expressed the wish that such efforts and cooperation would be conducive to bringing about positive developments for the overall situation in the country.

The Worker member of Brazil said that the serious violations of Convention No. 29 by the Government of Myanmar had been the object of comments by the ILO supervisory bodies for some 30 years. In 1993, the former International Confederation of Free Trade Unions (ICFTU) had made a representation under article 24 of the ILO Constitution based on the forced recruitment of workers by the military and, in 1995 and 1996, Myanmar had been the object of a special paragraph in the report of the Conference Committee on the Application of Standards.

In 1997, following a complaint presented by 25 delegates during the 84th Session of the ILC, a Commission of Inquiry had been created by virtue of article 26 of the Constitution. The Commission of Inquiry had concluded that Convention No. 29 was being violated in a widespread and systematic manner and formulated a number of recommendations. In 2000, based on the observations of the Commission of Inquiry, the Conference Committee had recommended that the ILO constituents break off their relations with the Government of Myanmar; it had asked the Director-General to request the relevant bodies of international organizations to review any existing cooperation with Myanmar and to cease, as appropriate, all activities that could lead to forced or compulsory labour; it had invited the Director-General to put an item on the agenda of the July 2001 ECOSOC meeting with regard to Myanmar's non-observance of the recommendations made in the Commission of Inquiry's report, for purposes of getting its recommendations adopted by ECOSOC, the General Assembly and other specialized agencies.

Subsequently, the Committee of Experts had stipulated four areas in which the Government had been required to adopt measures to ensure that the recommendations would be implemented. In March 2007, the Governing Body had asked the Office to request an advisory opinion of the ICJ on Myanmar's serious and persistent non-observance of the recommendations of the Commission of Inquiry and of the ILC, and the repeated violations of Convention No. 29. She recalled that, according to the Committee of Experts, there still had been no substantive change in Myanmar's situation and that the international community had addressed the problem in other forums than the supervisory bodies of the ILO, the issue having been the focus of debate in several United Nations bodies.

In March 2009, the United Nations Human Rights Council had urged the Government to put an end to imprisonment on political grounds, the recruitment and exploitation of children as soldiers and all forms of discrimination, and had made a series of recommendations. The issue had also been addressed in the Security Council, whose members had reiterated the importance of freeing political prisoners and emphasized the negative consequences of the situation of the opposition leader and Nobel Peace Prize winner, Aung San Suu Kyi.

In conclusion, she stated that it would be appropriate and opportune for the ILO to request an advisory opinion of the ICJ, as such a measure would place the Government of Myanmar before an international tribunal immediately prior to the elections scheduled in 2010, and this could help bring democracy to the country. Furthermore, such a measure would strengthen the role of the ILO. Finally she added that, given the quantity and quality of the jurisprudence that had been accumulated by the Committee of Experts and Committee on Freedom of Association in these past years, and the decisions of the Governing Body, the likelihood of a positive outcome for the ILO and the ICJ was great; such an outcome would further strengthen the juridical and political credibility of the ILO and increase its visibility.

The Government member of Cambodia welcomed the agreement signed on 26 February 2009 between the Government of Myanmar and the ILO to extend the application of the Supplementary Understanding, which included the complaints mechanism, for a further year. Implementation of the Supplementary Understanding over the last year had demonstrated the progress achieved from cooperation between the ILO and the Government of Myanmar and the clear commitment of both parties to continuing cooperation on the eradication of forced labour. He therefore expressed strong support for and encouraged continued cooperation between the Government of Myanmar and the ILO.

The Worker member of Italy emphasized that forced labour in Myanmar continued to be imposed on a daily basis on the country's population. She said that those who perpetuated this system were individuals who represented the authorities and consisted, in most cases, of the principal commanders of the military units present in the whole country, and whose identities had been established and actions widely documented, in the states of Shan and Chin for example, by the legitimate trade unions of Myanmar. In this regard, she presented a long list of names of commanders and identified the Light Infantry Battalions responsible for forced labour cases and not at all punished under the Penal Code. The persistence of forced labour in Myanmar was not only a result of the stubbornness of the country's Government but also of the passivity or failure to take action of international institutions, foreign governments and foreign enterprises; this was evidenced by the general non-observance of the ILO resolution of 2000, which enabled the regime to continue its pernicious requisition of labour, repression of complainants, oppression of the population, women and children included, torture, assassinations, land confiscations, denials of property rights and forced recruitment of children. It was with these methods that the military junta continued to maintain its power, as was evidenced by the conditions under which the referendum on the new draft Constitution had been conducted in 2008, an instrument the purpose of which was to legitimize future political elections, by means of which the junta would attempt to change in appearance while changing nothing in its actions. This was why today governments and institutions had to stop limiting themselves to mere political statements, closing their eyes to the generalized exploitation of Myanmar's national resources which were used to increase repression, for the acquisition of weapons, and the construction of an experimental nuclear power plant, for example, and begin to consider more concrete measures. The ILO had to review the implementation of the ILO resolution of 2000 and put in place a reinforced reporting mechanism to monitor the measures adopted by member States and international institutions in this regard. It was necessary, without delay, to decide on a new set of economic, juridical and diplomatic measures to bring the generals to sit at the negotiating table. The European Union had to intensify its targeted actions in the financial and insurance sectors and its member States had to work in this direction as well, thus introducing also adequate monitoring mechanisms. Sanctions should be linked to political initiatives and high-level missions to Burma by UN, EU, ASEAN envoys to apply political as well as economic pressure. Finally, it was necessary to succeed in initiating legal proceedings at the international level with the ICJ, the International Criminal Court and national tribunals; and for this to be possible, employers and governments had to be unanimous and fully committed to supporting such an approach, as of now, by means of coherent and sustained actions, under the auspices of the ILO.

The Government member of India expressed his Government's satisfaction with the progress achieved in Myanmar and the strengthened cooperation between the Government of Myanmar and the ILO. He further welcomed the extension of the Supplementary Understanding for another year from 26 February 2009, and noted the progress in the work of the Liaison Officer, especially as regards joint field visits facilitated by the Government of Myanmar. Another matter of satisfaction was the effective functioning of the mutually agreed complaints mechanism with regard to underage recruitment. The abovementioned improvements illustrated the commitment of the Government of Myanmar to the eradication of forced labour. The Government of India had consistently encouraged the continuation of dialogue and cooperation between Myanmar and other member States to resolve all outstanding issues, and wished to commend the ILO Director-General for assisting Myanmar in its efforts. While remaining strongly opposed to the practice of forced labour, his Government welcomed the recent positive developments in the field.

The Worker member of the Republic of Korea echoed the view that all ILO constituents should respect and implement the ILO resolution of 2000 in order to eradicate forced labour in Burma. Recalling his comments to the Committee two years previously regarding the Shwe Gas Project and his call to the companies concerned and his Government to postpone the project until alleged human rights abuses could be investigated, he said that the Government was in fact moving in the opposite direction, under the guise of "national interest". Following the ASEAN-Republic of Korea Commemorative Summit held in early June 2009, the governments of the Republic of Korea and Burma had signed a Memorandum of Understanding on agricultural technology cooperation. Such cooperation, however, was likely to benefit only the Burmese military regime, not its people.

The Republic of Korea, as a member of both the Organisation for Economic Co-operation and Development (OECD) and the ILO, should be committed to promoting the OECD Guidelines for Multinational Enterprises, which were a set of principles for corporate social responsibility. He considered, however, that the Government of the Republic of Korea had betrayed his confidence, by rejecting a complaint from national trade unions and EarthRights International alleging that certain companies were in breach of the OECD Guidelines in respect of their involvement in the Shwe Gas Project. The Government simply repeated the opinions expressed by one of the companies, ignoring all evidence showing that the two companies concerned had failed to take the necessary steps to prevent the project from having a negative impact on labour rights. He urged the Government of the Republic of Korea to fulfil its obligations, as an ILO and OECD member State, beginning by intervening to have the project postponed and all related allegations of labour rights abuses investigated.

The speaker emphasized the duty of all governments and employers to help eradicate forced labour in Burma. China and India, in particular, were unwilling to implement the ILO resolution of 2000 because of national interests, for example significant Chinese investment in the hydropower and extraction sectors in Burma. Not only private but also state-owned companies from countries such as China, India, Republic of Korea and Thailand were involved in large-scale projects in Burma, demonstrating little respect for either the ILO resolution of 2000 or the country's labour rights situation. He urged the companies and States concerned to respect and implement the ILO resolution of 2000 and conduct human rights impact assessments before deciding to invest in Burma. Action was needed to prevent loss of natural resources and human rights abuses on a massive scale.

The Government member of the Russian Federation, stressing the need to eradicate forced labour throughout the world, welcomed the extension of the Supplementary Understanding between the ILO and the Government of Myanmar for a further 12 months, which spoke well for the constructive dialogue between the two parties. According to information from the Office, the complaints mechanism provided for in the Supplementary Understanding was in operation and was yielding positive results. Several dozen complaints had been examined by the competent authorities in Myanmar and practical measures had been taken, including the establishment within the Ministry of Labour of Myanmar of a working group to examine complaints regarding forced labour. He welcomed the fact that the ILO Liaison Officer had visited various regions of the country to see the situation on the ground, which increased the effectiveness of the ILO's activities, and commended his personal efforts. Work was under way to raise awareness of the complaints mechanism among the population. The involvement of the Ministry of Defence in the complaints process was encouraging. He welcomed the ILO's participation in a pilot project in the Delta region for communities affected by cyclone Nargis and endorsed continued and deepening constructive cooperation between the ILO and the Myanmar Government as the best way of solving the problem of forced labour in Myanmar and ensuring implementation of Convention No. 29.

The Worker member of Pakistan associated himself with the statements made by the Worker members and other speakers pertaining to the common concern and condemnation of forced labour in Burma which was a flagrant violation of fundamental human rights and of Convention No. 29. Asia, including Burma, was a continent, where the people had a tradition of great historical culture and great human values. Unfortunately, in spite of the continued struggle of the international community, including the ILO, the Burmese Government had not been able to respond to the call to take effective measures to eliminate forced labour. This year's report of the Committee of Experts once again demonstrated the Government's failure to amend the relevant laws and punish the culprits committing forced labour. Forced labour was not punishable under the Constitution and double standards were used for military personnel committing forced labour. He appreciated the work done by the Liaison Officer and urged that the first Memorandum of Understanding be used when cases of forced labour committed by the Government came to his attention. He called upon all Asian governments and the Employer members to use their influence upon the Burmese Government to eliminate all forms of forced labour, establish a democratic prospect and release Ms Aung San Suu Kyi and other political prisoners, as well as to withdraw immediately the unfounded charges against the leadership of the National League for Democracy. He recalled that human rights could only be observed where there exist democratic values and civil liberties, which were a sine quo non for promoting social justice.

The Government member of Canada recalled that 12 years had already passed since the Commission of Inquiry, and nine years since the Governing Body had invoked article 33 of the ILO Constitution. The Commission of Inquiry had set out clear steps: (1) bringing the relevant national legislation into line with Convention No. 29; (2) ensuring that forced labour was no longer imposed in practice by the military; and (3) ensuring that penalties for the exaction of forced labour were enforced against the perpetrators. Despite the adoption of the Supplementary Understanding, the pace of progress was desperately slow. There was still no indication of measures envisaged to repeal the Village Act and the Towns Act, and the new Constitution allowed for the generalized exaction of forced labour. Criminal penalties were either totally absent or risible for military. The Government of Myanmar continued to refuse to issue a clear high-level statement against forced labour. The moderate progress made had only been achieved due to the tenacity of the International Trade Union Confederation (ITUC), the ILO and the complainants who were risking reprisals. The speaker subscribed to the Committee of Experts' view that the only way to make real progress was the concrete demonstration by the Burmese authorities of their commitment to achieve the goal of eradication of forced labour. His Government called on the Burmese authorities to proactively embrace the recommendations of the Commission of Inquiry.

The Worker member of the Russian Federation stated that, despite its rare participation in debates on the issue, violations of Convention No. 29 by the Government of Myanmar were a matter of concern to the Russian labour movement. Russian trade unions had supported the conclusions of the report by Vaclav Havel and Desmond Tutu on the subject and had approached the Russian Ministry of Foreign Affairs for clarification of the Russian Government's position. It was obvious that the only way to solve the persistent problem was unconditional compliance by the Government of Myanmar with all recommendations addressed to it by the Committee of Experts and other ILO bodies.

He drew attention to the fact that the objectivity of reports and, consequently, recommendations relied on the credibility and impartiality of information and facts, and expressed full confidence in the information and analysis contained in the reports of the Committee of Experts and in the conclusions of the Commission of Inquiry. He echoed the calls made by other speakers to all governments, without exception, to take the measures provided for in the ILO resolution of 2000. Fulfilment of the obligations arising from membership of the ILO and continued cooperation between the ILO and the Government of Myanmar would make a significant contribution to reaching a positive solution to a long-standing problem and to promoting the elimination of forced labour in Myanmar and throughout the world.

An observer representing the Federation of Trade Unions of Burma (FTUB), speaking on behalf of the ITUC, thanked the ITUC, the ILO and the Liaison Office for their successful efforts to secure the immediate release of four FTUB members arrested in April 2009. Six persons were still in custody for attempting to organize a May Day discussion, and 22 other labour activists were serving long prison sentences for their efforts to secure rights for Burmese workers.

The speaker indicated that forced labour still persisted in all parts of Burma. The perpetrators, the majority of whom were military personnel, continued to abuse citizens through forced labour because of the lack of meaningful penalties. For the military, the most severe penalty for the exaction of forced labour was the removal of one year of seniority. As a result, the value of using forced labour was greater than the threat of any possible sanction. The rural population still lived in fear that they would be taken by force to carry out "duties assigned by the State", or that their land would be forcefully confiscated for "security reasons". He welcomed the increase in the number of reports to the Liaison Office, which showed that, despite the slowness of the junta, many education and awareness programmes had reached the people. Those programmes needed to be extended so that the majority of the population could understand basic workers' rights.

The successive juntas had always claimed that it was the lack of funds that was hampering change in Burma. The speaker contested this claim, recalling the recent shift of the capital of Burma to an isolated location equipped with new buildings and airport, and significant imports of nuclear and other military technology. A fraction of those funds from oil and gas revenues would have sufficed to replace forced or unpaid labour and solve the social and economic issues of the population. Multinational enterprises working with the junta should be aware of the negative impact of their activities.

A decade after the adoption of Order 1/99, which provided that the power to requisition forced labour under the Village Act and Towns Act should not be exercised, the new Constitution would permit forced labour under its article 359. The FTUB called on the ILO and all governments, employers and workers present in the room to do everything in their power to push for change in Burma and for a review of the Constitution, before the junta would succeed in imposing it through forced elections in 2010. Lastly, he asked the ILO to request an advisory opinion from the ICJ as a key part of the UN system. This would not only convey to the junta that the generalized use of forced labour did not go unnoticed and unpunished but would also send to the labour activists in Burma the strong message that the world was fighting for them.

An observer representing the International Federation of Chemical, Energy, Mine and General Workers' Unions (ICEM) expressed his concern about foreign investment and economic activity of certain multinational enterprises in Myanmar despite the use of forced labour. In his view, without serious efforts being deployed by the Association of Southeast Asian Nations (ASEAN), the democratization process would never be initiated in Myanmar. He considered however that the ASEAN, while recognizing the deficiencies in Myanmar in terms of democracy, let its business interests in the country prevail. From all governments present at ASEAN Plus Three, only the Government of Japan had recently supported a resolution tabled by the ICEM. Lastly, given that the improvements mentioned by the Governments of China and Viet Nam only concerned forced labour, the speaker felt that the lack of progress as regards democratization had been generally recognized by this Conference Committee.

The Government member of the Republic of Korea, welcoming the ILO's tireless efforts to eliminate forced labour in Myanmar, expressed appreciation for the slow but meaningful improvements in the situation since the signing of the Supplementary Understanding between the Government of Myanmar and the ILO. In the long term, eradication of forced labour in Myanmar could be facilitated by social and economic development in the country.

The Government representative of Myanmar, in reply to the interventions made, recalled that Myanmar had ratified Convention No. 29 in 1955 which was an enduring testimony of its political will to eradicate forced labour. Following the signing of the Supplementary Understanding, the Ministry of Labour had reaffirmed this commitment to eliminate forced labour. The complaints mechanism had functioned smoothly since its establishment in 1997 and this would not have been possible without the political will and good faith of his Government. With respect to the charges against Ms Aung San Suu Kyi, these would be dealt with in accordance with the law and applying the principle of fair justice. He requested the Chairperson to remind the speakers to address a sovereign member State in its official name properly in future deliberations in this august body which was the common practice in all UN forums and conferences.

The Worker members, observing that the analysis of the case was already complete, summarized their requests, which fell into three areas:

- immediately liberating Aung San Suu Kyi and all trade union activists and political prisoners who had been imprisoned for having exercised their right to freedom of speech and freedom of association; immediately ending the harassment and imprisonment of those persons who filed complaints regarding forced labour; and ending the criminal impunity of the perpetrators of forced labour;

- implementing all the recommendations made by the Commission of Inquiry; reviewing the draft Constitution, particularly the articles relating to forced labour and freedom of association and, as a result, legally recognizing the FTUB; and

- reporting on the implementation of the ILO resolution of 2000; reporting on the action taken by international institutions, governments, employers' organizations and workers' organizations in implementing the resolution adopted in June 2000; holding a conference to bring together all parties concerned in order to establish best practices for implementing the ILO resolution of 2000; putting into operation other mechanisms provided for by international law against the perpetrators of forced labour.

With regard to practical and immediate action, the Worker members requested in particular that:

- the Liaison Officer should be committed to the implementation of all the recommendations made by the Commission of Inquiry;

- the resources available to the ILO in Myanmar should be strengthened, through increasing its number of offices and creating a network of facilitators in the country; and

- the ILO Secretariat should study, in consultation with the competent authorities and with the necessary legal precautions, the issue or issues that could be submitted to the ICJ for an advisory opinion, with a view to a decision that could be taken in that regard by the Governing Body at its next session.

The Employer members stated that ratification of a Convention was not, in and of itself, an indication of political will. The only true indication was full implementation in law and in practice: nothing else was sufficient. The Committee had heard some positive indications during the course of its meeting, but, fundamentally, there was no real, genuine or sustained political will to end the practice of forced labour. The Government had barely scratched the surface. Widespread forced labour still existed, but it was within the Myanmar authorities' power to end it immediately. The Government needed to take the actions it knew were required in order to end the continued violations of human rights, which were not only harmful to Myanmar's citizens but also resulted in the Government losing its moral authority to govern and its credibility within the international community. Disrespect for human rights impeded economic development because few would invest in a country with no civil liberties or democracy and with a low level of human development.

It was a matter of deep concern that forced labour was still widespread, and concrete evidence of changes, verifiable in law and in practice, was needed. In particular, the Government should be receptive to the expansion of the capacity of the ILO Liaison Officer in order to extend community development projects to other areas of the country and provide the Liaison Officer with more authority within the complaints mechanism. The Employer members expressed profound regret that forced labour had not yet ended and that there seemed little prospect of the situation changing in the near future. The Government needed to take seriously the warning that stronger measures might be called for if it did not rapidly increase its efforts to end the practice of forced labour.

Conclusions

The Committee noted the observations of the Committee of Experts and the report of the ILO Liaison Officer in Yangon that included the latest developments in the implementation of the complaints mechanism on forced labour established on 26 February 2007 with its trial period extended on 26 February 2009 for a further 12 months. The Committee also noted the discussions and decisions of the Governing Body of November 2008 and March 2009. It also took due note of the statement of the Government representative and the discussion that followed.

Since its last session, the Committee acknowledged some limited steps on the part of the Government of Myanmar: the further extension of the Supplementary Understanding for another year; certain activities concerning awareness raising of the complaints mechanism established by the Supplementary Understanding; certain improvements in dealing with under-age recruitment by the military; and the distribution of publications relating to the Supplementary Understanding.

The Committee was however of the view that those steps were totally inadequate. The Committee, recalling the conclusions reached in its special sitting at the 97th Session of the Conference (June 2008), again placed emphasis on the need for the Government of Myanmar to work proactively towards the full implementation of the recommendations of the Commission of Inquiry appointed by the Governing Body in March 1997 under article 26 of the Constitution. It also recalled the continued relevance of the decisions concerning compliance by Myanmar with Convention No. 29 adopted by the Conference in 2000 and 2006 and all the elements contained therein.

The Committee fully supported all of the observations of the Committee of Experts and the decisions of the Governing Body referred to above, and had the expectation that the Government of Myanmar would move with urgency to implement all the actions requested.

The Committee strongly urged the Government to fully implement without delay the recommendations of the Commission of Inquiry and the comments and observations of the Committee of Experts, and in particular to:

(1) take necessary steps without any further delay to bring the relevant legislative texts, in particular the Village Act and the Towns Act, into line with Convention No. 29;

(2) amend paragraph 15 of Chapter VIII of the new Constitution in order to bring it into conformity with Convention No. 29;

(3) ensure the total elimination of forced labour practices that were still persistent and widespread;

(4) ensure that perpetrators of forced labour, whether civil or military, were prosecuted and punished under the Penal Code;

(5) issue an authoritative statement at the highest level clearly confirming to the people of Myanmar the Government's policy for the elimination of forced labour and its intention to prosecute perpetrators;

(6) approve a simply worded brochure in accessible languages on the functioning of the Supplementary Understanding; and

(7) eliminate the continuing problems in the physical ability of victims of forced labour or their families to complain and immediately cease harassment, retaliation and imprisonment of individuals who used or facilitated the use of the complaints mechanism.

The Committee specifically called on the Government of Myanmar to take every opportunity, including through the use of all of the various media channels available, to increase the awareness of the people as to the law against the use of forced labour, their rights under that law and of the availability of the complaints mechanism as a means of exercising those rights.

The Committee, whilst acknowledging the continued use of joint awareness-raising seminars/symposia, called on the Government and the ILO Liaison Officer to redouble these efforts towards ensuring a full understanding on the part of all officials (military and civil) as to their responsibilities under the law.

The Committee noted with serious concern the continued human rights violations in Myanmar including the detention of Aung San Suu Kyi. The Committee called for her release and that of other political prisoners, as well as labour activists. It further called for the immediate release of those persons who were associated with the operation of the complaints mechanism and who were currently incarcerated.

The Committee called for the strengthening of the capacity available to the ILO Liaison Officer to assist the Government in addressing all of the recommendations of the Commission of Inquiry and to ensure the effectiveness of the complaints mechanism, and expected the Government to cooperate fully in that regard.

Not reproduced:

Document D.5

B. Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29), by Myanmar

C. Report of the Liaison Officer to the special sitting on Myanmar (Convention No. 29) of the Committee on the Application of Standards

D. Conclusions of the Committee on the Application of Standards in its Special sitting to examine developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) (International Labour Conference, 97th Session, June 2008)

E. Documents before the Governing Body at its 303rd Session

F. Documents before the Governing Body at its 304th Session

Document D.6

G. Information received from the Government of Myanmar - Communication received by the Office on 1 June 2009

Individual Case (CAS) - Discussion: 2008, Publication: 97th ILC session (2008)

A. Record of the discussion in the Committee on the Application of Standards

A Government representative of Myanmar said that Myanmar was now passing through a most important phase in its modern history. The national referendum to adopt the new State Constitution had been held successfully on 10 May 2008 in 278 out of 325 townships in Myanmar, and in the remaining townships of Yangon Division and Irrawaddy Division, which had been hit by the severe cyclone Nargis, on 24 May 2008. According to the result, over 26.8 million eligible voters had voted in favour of the Constitution, accounting for 92.48 per cent in the referendum. Therefore, the new State Constitution had already been approved by the overwhelming majority of the people of Myanmar. The State Peace and Development Council (SPDC) issued Announcement No. 7/2008 on 29 May 2008 announcing that the State Constitution had been ratified and promulgated by the national referendum. Myanmar had therefore successfully completed the fourth step of the Seven-Step Road Map. The multi-party democracy general elections, which was the Fifth Step, would be held in 2010. This was indeed significant progress in Myanmar's political transition towards a democratic society.

He added that the joint field visit of the Ministry of La bour and the ILO Liaison Officer on 20 to 21 May 2008 to Nyaung Lay Bin Township, Bago Division, for awareness raising had proved the freedom of movement of the ILO Liaison Officer to carry out his responsibilities. Another area in which significant progress had been made was public awareness and educational activities. A special press conference organized by the Ministry of Labour had been held on 26 March 2007 in Nay Pyi Taw. The Director-General of the Department of Labour had explained in detail about the Supplementary Understanding and had replied to the questions raised by reporters and journalists. The Ministry of Labour had also published news about the prohibition of forced labour in the country in the local newspaper, the New Light of Myanmar, on 31 March 2007.

He informed the Committee that in response to the request of the Governing Body, the translation of the Supplementary Understanding into the Myanmar language had been completed and uploaded onto the web site of the Ministry of Labour. The translated version of the Supplementary Understanding had also been sent to the ILO Liaison Officer.

He noted that since the 301st Session of the Governing Body, the Liaison Officer had received 78 complaints, of which 45 had been transmitted to the Working Group for necessary action after the preliminary investigation had been made by the Liaison Officer. Of the 45 cases, 29 had already been closed after necessary investigation by the Ministry of Labour. The remaining 16 cases were under investigation and would be finalized in the near future. At the end of February 2008, the ILO Liaison Officer had transmitted 19 cases relating to the military to the Chairperson of the Working Group, the Deputy Minister of Labour. The Ministry of Labour had submitted those cases to the Adjutant General's Office of the Ministry of Defence for the necessary action. The details of these cases had already been provided to the Committee of Experts on the Application of Conventions and Recommendations on 28 February 2008. The Ministry of Labour subsequently received another six new cases from the ILO Liaison Officer, which had also been forwarded to the Adjutant General's Office for necessary action. The total number of cases related to the military was therefore 25, of which 16 had already been closed and only nine remained. Of the nine remaining cases, replies had already been provided to the ILO Liaison Officer on four cases, and five cases were still under investigation.

He emphasized that his country attached great importance to the question of the protection and promotion of the rights of the child. Myanmar was a party to the United Nations Convention on the Rights of the Child and had enacted the Child Law, as well as the Military Service Recruitment Laws and Regulations, under which the recruitment of minors under the age of 18 was illegal. He added that the United Nations Country Team in Myanmar had been cooperative and supportive of the Government's endeavours to prevent the recruitment of under age children. Cooperation would be continued with the United Nations Country Team and also with the Special Representative of the Secretary-General for Children and Armed Conflict.

With regard to Su Su Nway, he indicated that she had been charged in two cases. The first was under sections 124 (a), 130(b) and 505(b) of the Penal Code. The second was under sections 143 and 147 of the Penal Code. The trial at the West Yangon District Court was still proceeding. In both cases, the sections of the Penal Code under which she had been charged did not relate to either the Supplementary Understanding or workers' affairs. With regard to the case of Min Aung, he had been charged under Penal Code section 143 providing for the punishment of a member of an unlawful assembly, and section 295 respecting a malicious act intended to outrage religious feelings of any group by insulting its religion or religious beliefs, as well as under section 505(b) respecting statements leading to public mischief. He had been found guilty under the above sections and sentenced accordingly by the Thandwe District Criminal Court. Upon appeal to the Rakhine State Criminal Court, the sentences had all been reduced. All of the above sections of the Penal Code were beyond the scope of the Supplementary Understanding and workers' affairs, and the Supreme Court confirmed the decision of the Rakhine State Criminal Court. In another case, Min Aung had been charged in the Thandwe District Criminal Court under section 6 of the Formation of Associations Law and had been found guilty and sentenced. Following an appeal to the Rakhine State Criminal Court, the sentence had been reduced.

He reconfirmed that the case of Thet Wai was not in any way associated with activities against forced labour. He had been charged under section 353 of the Penal Code respecting assault or criminal force to deter a public ser vant from discharging his duty, and section 189 respect ing the threat of injury to a public servant. The trial was still proceeding.

He indicated that, among the basic principles enshrined in the new State Constitution, a provision relating to forced labour was specifically included in Chapter VIII, paragraph 359. This clearly demonstrated that the Government had put in place a comprehensive framework of legislative measures to eliminate the practice of forced labour in the country.

He took the opportunity to provide information on the situation in Myanmar after the powerful tropical cyclone which had severely affected the country. Earlier in the month, Myanmar had faced the most severe natural disaster in its history. Cyclone Nargis had hit Ayeyawady and Yangon Divisions on 2 and 3 May. The effect had been devastating. About two days before the natural disaster, national television and radio had continuously warned the people in the regions about the storm. However, the magnitude of the storm had been very severe with very high winds and a very high tide, preventing the local people from moving from the areas. As a result, 77,738 people had been confirmed dead, 55,917 people were still missing and 19,359 had been injured.

The Government, in cooperation with the international community, was taking emergency relief and rescue measures including the establishment of emergency relief camps and the distribution of emergency relief provisions to the cyclone victims. The Government of Myanmar was also working closely with the Association of South-East Asian Nations (ASEAN), neighbouring countries and the international community. On 19 May, ASEAN had established an ASEAN-led coordinating mechanism to facilitate the effective distribution and utilization of assistance from the international community. A task force headed by the ASEAN Secretary-General had been formed to operate the mechanism. As of 25 May 2008, 3273.20 tonnes of humanitarian supplies delivered by 221 cargo flights from various countries and organizations had been received. In addition, emergency relief provisions were being received by sea and land everyday. These supplies had been distributed to the victims immediately.

The Government had announced a three-day national mourning period for the cyclone victims from 20 to 22 May 2008. The Chairperson of the State Peace and Development Council had toured the cyclone-hit areas on 19, 20 and 21 May 2008 and had encouraged the victims in the affected areas. The Government had arranged a visit to the relief camps in Yangon and Ayeyawady Divisions for diplomats, United Nations agencies, representatives of donor countries and international organizations on 17, 21 and 22 May 2008. The United Nations Secretary- General Ban Ki-moon visited relief camps in the hardest-hit delta areas on 22 May; the local authorities explained to the Secretary-General the measures being taken for rehabilitation, health-care services and to meet the needs of the victims. He had been received by the Head of State and the Prime Minister.

On 25 May 2008, an ASEAN-United Nations International Pledging Conference had been held in Yangon. A total of 51 countries and 24 international organizations had participated in the Conference, which had been attended by Ban Ki-moon. The Conference had focused on cooperation in providing assistance to the victims of the cyclone.

In conclusion, he extended his deep appreciation to governments, the United Nations, including the International Labour Organization, international organizations, non-governmental organizations, private individuals and friends far and near for the sympathy and condolences expressed and the kind generosity in donating emergency relief provisions as well as financial support for relief and resettlement of the victims in the cyclone-hit areas. He also expressed gratitude to Mr Marshall and the staff of the ILO Liaison Office which, as part of the United Nations Country Team, was cooperating actively with the Government in the relief efforts.

The Worker members emphasized that for many years the Conference Committee on the Application of Standards had been holding a Special Sitting on the serious and continuing situation with regard to forced or compulsory labour in Myanmar. This year, however, and unlike in previous years, when the Conference Committee had had to be content with small steps forward or backward, the situation had been deeply affected by dramatic political and humanitarian events.

It should be recalled that the 1997 Commission of Inquiry had concluded that widespread and systematic violations of Convention No. 29 existed in both national law and practice. In July 2008, it would be ten years since the Commission of Inquiry had formulated the following three recommendations: (1) that the relevant legislative texts should be brought into line with Convention No. 29; (2) that in actual practice, no more forced or compulsory labour should be imposed by the authorities, in particular the military; and (3) that the penalties which could be imposed for the exaction of forced or compulsory labour should be strictly enforced.

In addition, to ensure the implementation of these three recommendations, the Committee of Experts had identified four areas in which concrete measures should be taken. However, the continued failure by the Government to implement the recommendations of the Commission of Inquiry had led the Governing Body to have recourse to article 33 of the ILO Constitution in March 2000, an unprecedented decision. Despite this decision, however, year after year the Committee of Experts and the Conference Committee had only been able to highlight the flagrant continuing violations of Convention No. 29 and the systematic refusal to give effect to the recommendations of the Commission of Inquiry. Ten years later, none of the recommendations had been implemented. During this time, a large number of multinational enterprises, however, had no hesitation in remaining in the country.

What is the situation today? According to the latest observation of the Committee of Experts, as well as the report of the Liaison Officer and the new facts reported in documents D.5 and D.6 to the Conference Committee, the Government, although it had drafted a new Constitution, had not included the principle of freedom of association or a clear prohibition of forced labour. Freedom of association was therefore still entirely subject to laws on state security. The Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) would be respected no more in the future than it had been in the past. Moreover, the provision in the draft new Constitution prohibiting the use of forced labour contained such restrictions that it contradicted Convention No. 29.

Furthermore, no high-level statement on forced labour had been made by the Burmese authorities, despite the fact that the Governing Body had requested such a statement on several occasions. With regard to adequate budgetary means to replace forced or unpaid labour, the Government had indicated that a share of the budget was allocated to every ministry to cover labour costs. Nevertheless, as the Committee of Experts had mentioned in its observation, it was difficult to understand why recourse to unpaid forced labour remained widespread, particularly by the military and local civil administrations.

With regard to the dissemination of information and enforcing the prohibition of forced labour, the Supplementary Understanding of February 2007 represented an interesting development, in that it contained a new mechanism for the submission of complaints through the Liaison Officer. This mechanism was a step forward. However, it was only a very small step forward as the Liaison Officer could only receive complaints and assist complainants, but could not report violations himself. In addition, the mechanism was still little known, for at least two reasons. First, even after 15 months, no understandable version of the Supplementary Understanding was available because the Junta had not yet approved a translation. Second, those who did not live close to Yangon encountered significant practical difficulties in presenting complaints, in view of the lack of a communication network covering the whole country. Finally, a number of people who had made complaints or who had been engaged in activities to implement the Supplementary Understanding had been harassed or detained.

In that context, the number of complaints received could not be considered to reflect the extent of forced labour in the country. Moreover, the means - that is to say the complaints mechanism - should not be confused with the end, namely the abolition of forced labour. However, the mission of the Liaison Officer should not be restricted to implementing the Supplementary Understanding. Priority must always be given to working toward the implementation of the three recommendations made by the Commission of Inquiry.

The new mechanism was nonetheless revealing in two respects, namely the continued existence of forced labour and the glaring lack of democracy and freedom of expression. With regard to the continued existence of forced labour, the International Trade Union Confederation (ITUC) had provided the Committee of Experts with extensive documentation. In relation to the extent of democracy, certain facts and events should be recalled, such as the following:

- the severe repression by the Government of the peaceful demonstrations of September 2007 and the higher death toll than initially reported;

- the detention and imprisonment of individuals who had exercised their fundamental right of expression, including Min Aung, Su Su Nway and the six trade union activists sentenced in September 2007, and the charges made against one of the facilitators of the new complaints mechanism, U Thet Wai, simply for being in contact with the ILO;

- the arrest this week of 18 people protesting peacefully against the extension of the house arrest of Aung San Suu Kyi, despite the draft new Constitution guaranteeing freedom of expression;

- the referendum on the draft new Constitution, which had been prepared and drawn up in an authoritarian manner, without any dialogue with the opposition and excluding any participation by nuns, monks and Hindu and Christian leaders, as well as Aung San Suu Kyi and others;

- the three-year prison sentence for disseminating leaflets, posters, speeches and other means of criticizing the referendum; and finally

- the reservation for the military of 25 per cent of parliamentary seats and of the right of veto.

The restriction of democracy had been dramatically demonstrated after cyclone Nargis had struck. The areas affected had been closed to all humanitarian aid from outside. The population had been unable to express either its suffering or its urgent needs, with the result that, according to estimates, at least one third of those affected still lacked vital aid. The Worker members expressed their full sympathy and complete solidarity with the Burmese people.

The humanitarian disaster should not divert attention from forced labour in Burma. Indeed, the Junta might well try to take advantage of the disaster to increase the use of forced and child labour in the long process of reconstructing the country. It was therefore incumbent upon all international organizations and governments to ensure that their aid was in compliance with the fundamental rights of the workers of Burma. Similarly, the International Labour Organization should ensure that reconstruction of the country was carried out in accordance with the rights of workers and the principle of decent work.

The Worker members added that the Committee had been holding a Special Sitting on the case for almost a decade and the case had been before the Conference Committee for over 26 years. The cause of Burmese workers and their struggle against the slave labour regime in the country were also those of the worldwide labour movement, notwithstanding the unacceptable libel by the regime that the Federation of Trade Unions of Burma (FTUB), was a terrorist organization. It was impossible to review the case in a vacuum. It was therefore necessary to recall the brutal crackdown in September 2007 against the largest democratic mobilization since 1988, in which at least 110 people had been killed and thousands wounded; the imposition of 20 to 28 year prison sentences on six trade union activists last year, namely Thurein Aung, Kyaw Kyaw, Shwe Joe, Wai Lin, Aung Naing Tun and Nyi Nyi Zaw, merely for meeting to discuss labour rights; and the odious interference by the regime with the entry of international relief workers and the confiscation of vital food and medicine in the midst of the tragic national disaster of cyclone Nargis. Moreover, as recently as the previous week, the regime had even violated its own laws and Constitution by extending the detention of Aung San Suu Kyi for five more years, as well as arresting the peaceful demonstrators who had protested against this measure. These events merely added to the incontrovertible evidence of the chronic bad faith of the regime in relation to internationally recognized human rights and the ILO's fundamental Conventions, as well as its total disdain for nearly the whole of its people.

The Worker members also recalled their comments the previous year on the relative merits, but also the limitations of the Supplementary Understanding, including the real fear of reprisals by its State Peace and Development Council (SPDC), restrictions on freedom of travel for complainants in outlying regions, and the thousands of Burmese victims living in Bangladesh, Malaysia, Thailand and other countries unable to have access to the system. The very basis of the Supplementary Understanding was that there should be no more reprisals against complainants or potential complainants. Yet, notwithstanding the protestations of the Government representative, only a few months ago U Thet Wai of the National League of Democracy had been arrested for possessing reports on forced labour which were to be delivered to the ILO Liaison Officer. The media had also reported that over 30 activists investigating labour issues had been arrested and were still being detained.

Contempt and impunity, both in law and in practice, had been the primary response of the military regime in relation to the recommendations of the Commission of Inquiry, approved by the Governing Body over ten years ago. Firstly, with regard to the recommendation to issue specific and concrete instructions to the civilian and military authorities, as noted by the Committee of Experts, the Government had still not provided even minimal details of the content of such instructions. Indeed, in view of the extensive documentation gathered together by the ITUC on the continued existence of forced labour in virtually every region, it was clear that such instructions had not been given. Secondly, with regard to the call to give wide publicity to the prohibition of forced labour, and despite the claim that publicity had been given to the Supplementary Understanding, there had still been no unambiguous public statement at the highest level that all forms of forced labour were prohibited throughout the country and would be duly punished. Thirdly, the demand for the Government to provide for the budgeting of adequate means to replace forced and unpaid labour remained unheeded. Fourth, in relation to ensuring the enforcement of the prohibition of forced labour, the Committee of Experts concluded that the regime had still not repealed the authorization of forced labour in the respective legislation despite promising to do so for over 40 years. The regime had also failed to adopt positive legislation prohibiting forced and bonded labour by children, including in the armed forces. The Committee of Experts further noted that the authorities had failed to bring any administrative or criminal action against military personnel for the imposition of forced labour conditions on the population. Of the 24 complaints that had been forwarded by the Liaison Officer to the Government, only two civilian officials had been subject to any serious and effective prosecution. The Worker members therefore reiterated their profound concern at the lack of criminal liability.

Finally, the Worker members recalled that the Governing Body had decided in March 2007 to defer the question of an advisory opinion by the International Court of Justice until the necessary time. The latest report of the Committee of Experts made it abundantly clear that the cooperation and actual progress achieved in complying with the recommendations of the Commission of Inquiry did not even come close to meeting the relevant threshold, which had been identified as one of the basic issues for review by the International Court of Justice.

The Employer members thanked the Government representative for appearing once again before the Conference Committee in its examination of the ongoing failure of his country to implement Convention No. 29. They affirmed that the hearts of the global community went out to the country because of the devastation of cyclone Nargis. However, they believed that the country's handling of the tragedy, and particularly its slowness in accepting aid from the international community and the lack of transparency, illustrated some of the root causes of forced labour, which was still prevalent. The causes of the forced labour situation included the lack of fundamental civil liberties, and particularly the right to freedom and security of the person, freedom of opinion and expression, freedom of assembly and association, the right to a fair trial by an independent and impartial tribunal, and protection of private property.

They emphasized that two events had had a significant impact on the context within which the ILO was working in the country, namely the civil unrest and its repression in the autumn of 2007 and the devastation caused by cyclone Nargis. When discussing the case, the ILO's supervisory bodies had focused attention on the recommendations of the Commission of Inquiry, in respect of which the Committee of Experts had identified four areas in which measures needed to be taken: issuing specific and concrete instructions to the civilian and military authorities; ensuring that the prohibition of forced labour was given wide publicity; providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and ensuring the enforcement of the prohibition of forced labour.

The Employer members welcomed the extension of the trial period of the Supplementary Understanding and recognized that the number of complaints had increased. However, fundamental practical problems seemed to persist in the physical ability of victims or their families to file a complaint and for the Liaison Officer and his team to carry out their duties. They expressed serious concern that a number of persons associated with the application of the complaints mechanism remained in detention, and were of the view that the low level of complaints was an indication that the citizens might not have adequate access to the mechanism nor feel that they had the freedom to file complaints. Moreover, commenting on the statement by the Government representative that criminal law was outside the scope of the Supplementary Understanding with the ILO, the Employer members emphasized that the important point was to ensure that criminal law did not override human rights, violate the right of freedom of association, or facilitate or condone forced labour.

The Employer members welcomed the approval by the Government of a translation of the Supplementary Understanding and understood that the draft text of a proposed brochure was currently under consideration by the Government. They emphasized that continued publicity of the mechanism was vital to ensure wide knowledge of the prohibition of forced labour and its effective application in practice, so as to send a message to potential perpetrators that they were not free to act with impunity. They hoped that the ILO text for the brochure would be approved and distributed throughout the country without delay. Targeted training and joint missions to follow-up specific complaints would also be helpful. But they emphasized that a high-level public statement on the Government's policy on the prohibition on forced labour remained vital to demonstrate a clear commitment to the eradication of forced labour.

Although it was too early to assess the effects of cyclone Nargis, they emphasized that forced labour and other human rights abuses should not occur in the reconstruction process. In this respect, they expressed appreciation of the work carried out by the Liaison Officer and other United Nations agencies under difficult circumstances, and urged the Government to facilitate their task.

The Employer members noted that the recently adopted Constitution contained specific articles on the right to freedom of association, freedom of expression and the right to organize. However, they observed that the article banning the use of forced labour contained qualifications which raised questions concerning its conformity with the Convention. Time would tell whether and how the rights contained in the two fundamental Conventions ratified by Myanmar would be applied in practice following the adoption of the Constitution. Words were not enough. Full and complete implementation in practice was required in accordance with the obligations of Convention No. 29.

The ILO had been calling on the Government to apply the Convention in both law and practice and to bring an end to the intolerable climate of impunity. The Government remained far from applying the measures recommended by the Commission of Inquiry, or from giving effect to the four areas of action identified by the Committee of Experts. It was a matter of concern that the Government had not replied in detail to the information requested by the Committee of Experts in its previous observation or to the ITUC's latest communication. The Employer members urged the Government once and for all to provide full and detailed information to the Committee of Experts as an unequivocal sign of its willingness to engage in genuine cooperation with the ILO's supervisory bodies. They also reminded the Government that the Supplementary Understanding and the establishment of a complaints mechanism in no way relieved the Government of its obligation to suppress forced labour under the Convention.

In conclusion, the Employer members urged the Government to make tangible improvements in national legislation and to provide sufficient funds to ensure that paid labour replaced forced labour under both civil and military administration as a demonstration of its unambiguous will to combat forced labour and the longstanding and unacceptable climate of impunity. The situation had gone on for too long. It was time for the Government to adopt a sense of humanity, bring an end to forced labour and rebuild the country without resorting to forced labour, as demanded by its own citizens and by the world.

The Government member of Slovenia, speaking on behalf of the Governments of Member States of the European Union (EU), the candidate countries of Croatia, The former Yugoslav Republic of Macedonia and Turkey, as well as Armenia, Georgia, Iceland, Republic of Moldova, Montenegro, Norway, Switzerland and Ukraine, reaffirmed their solidarity with the people of Burma/Myanmar affected by cyclone Nargis and welcomed the international conference held in Yangon on 25 May 2008, co-sponsored by the United Nations and ASEAN, to address the pressing needs of those affected by the terrible natural disaster. He expressed strong support for the efforts of the United Nations, international and local agencies, non-governmental organizations, the International Red Cross and Red Crescent Movement, donors and all others to bring vital aid to the people of the country. Free and unfettered access for such actors was urgent to prevent an even greater tragedy. He therefore called on the authorities to ensure expeditious delivery of visas and travel permits to all international humanitarian workers and took note of the gradual openings made so far. The European Union expected the authorities not to use forced or child labour in the reconstruction of the country, as had been the case after the tsunami of December 2004.

This case was one of the most serious and long-standing cases that the ILO had ever had to address. He therefore reiterated full support and appreciation for the work of the ILO and the Liaison Officer in assisting the Government to abolish the practice of forced labour. In that regard, he recalled the Conclusions of the Commission of Inquiry, the resolution of the 89th Session of the International Labour Conference, the conclusions of past sessions of the Governing Body and the four measures identified by the Committee of Experts to comply with the recommendations of the Commission of Inquiry, namely the following: issuing specific and concrete instructions to the civilian and military authorities; ensuring that the prohibition of forced labour was given wide publicity; providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and ensuring the enforcement of the prohibition of forced labour. He called upon the authorities to ensure that children were not recruited for military service and that all perpetrators of the illegal extraction of forced labour were adequately penalized, with the penalties being strictly enforced.

Welcoming the Supplementary Understanding of 26 February 2007 between the ILO and the national authorities, the aim of which was to eradicate forced labour and establish an effective complaints mechanism for victims of forced labour to seek redress without fear of harassment or reprisal, he noted with interest that the trial period of the Supplementary Understanding had been extended for a further year. Nevertheless, he reasserted the deep concern that the population outside Yangon was, by and large, unaware of the complaints mechanism set up by the Supplementary Understanding, owing to lack of translation, distribution and awareness-raising activities. He again urged the authorities to implement fully the Supplementary Understanding and arrange for further translation into local languages and for wide and easily understandable dissemination of the Supplementary Understanding and other awareness-raising materials.

The report of the Committee of Experts concluded that the complaints mechanism, while valuable, did not by itself address the root causes of the forced labour problem that had been identified by the Commission of Inquiry and the High-level Team. In particular, it did not address the basic governance relationships prevailing in the country, the role of the army and its self-reliance policy, and the absence of freedom of association and, more generally, freedom of assembly.

Clearly, the implementation of the Supplementary Understanding was not and could not be sufficient. In order to achieve substantial and lasting progress in eliminating forced labour, the national authorities needed to undertake a number of more-than-overdue measures beyond implementing the Supplementary Understanding, which was only one step towards achieving compliance with Convention No. 29. It was of paramount importance that the authorities reaffirmed, in a public and unambiguous statement at the highest level, the prohibition and illegality of all forms of forced labour, including the recruitment of child soldiers, and replaced contradictory legal provisions with the appropriate legislative and regulatory framework to give effect to the recommendations of the Commission of Inquiry. He shared the concern of the Liaison Officer that the article in the new Constitution banning the use of forced labour contained qualifications that could raise the question of its conformity with Convention No. 29. Finally, he encouraged neighbouring countries to continue with their efforts to lead Myanmar towards the ending of forced labour and the encouragement of national reconciliation.

The Government member of New Zealand expressed her Government's sincere appreciation for the continued dedication of the ILO Liaison Office in Yangon in promoting observance of Convention No. 29 by the Government, particularly in the face of the added challenges of the September 2007 protests, the constitutional referendum held in May 2008 and the major natural disaster of cyclone Nargis. The Liaison Office had been unstinting in its work, even managing to expand its range of activities, which had included a training of trainers course for military recruitment.

Her Government welcomed the extension of the Supplementary Understanding for a further 12 months, hoping that it would continue to produce results and that understanding of the issue would grow. Nevertheless, more was needed. To that end, the Government was urged to implement the recommendations of the Commission of Inquiry and to make a clear commitment to bringing an end to the practice of forced labour. The recent approval of a translation of the Supplementary Understanding was a step in the right direction. Her Government looked forward to its effective use, along with other informational material under consideration, including an explanatory brochure, in raising awareness of what forced labour was, explaining citizens' rights under the law and describing how complaints could be made using the ILO mechanism.

The people of Myanmar had the heartfelt sympathies of her country following the devastation wreaked by cyclone Nargis. Expressing concern that the risk of trafficking and forced labour might increase in the wake of the cyclone, the Government was urged to work with the ILO and others involved in relief efforts to ensure that reconstruction did not involve the use of forced labour. The absolute commitment of the Government to the process remained paramount. Her Government looked forward to deeper cooperation between the authorities and the ILO in the months and years ahead, with the goal of eradicating forced labour wherever and in whatever guise it appeared.

The Worker member of Japan referred to statistical data from various organizations concerning living conditions in Burma. According to the United Nations Children's Fund (UNICEF), the infant mortality rate remained high, with one death in ten births. Malnutrition was widespread among children with about one third of children severely or moderately stunted and underweight. More than 25 per cent of the population lacked access to safe drinking water and arsenic contamination was a major concern.

She also referred to the warning issued by the Director of the World Food Programme (WFP) in October 2007 that at least 5 million people were short of food and that humanitarian assistance was not enough to meet their needs. The WFP had also indicated in a project proposal submitted to its Executive Board that one third of the children were malnourished and one fifth were born underweight. The maternal mortality rate was 230 per 10,000 live births.

The United Nations Development Programme (UNDP) had recently conducted a household survey with the permission of the Government. The survey found that 95 per cent of the population lived on less than US$1 a day and 90 per cent on less than 65 cents a day. The average household spent almost 75 per cent of its income on food.

She stated that everybody should feel uncomfortable with the current situation in which, while the Government allocated only 0.5 per cent of its budget to health, 40 per cent of the budget went to the armed forces. Moreover, the Government had reportedly spent over US$300 million for the construction of its new capital, Naypyidaw. The people of the country were in need of access to in- ternational aid. In reality, however, due to the Government's deplorable human rights record, including workers' rights and forced labour, the amount of official development assistance provided by foreign governments had been sluggish, amounting to US$147 million in 2006, a slight increase by US$2 million from the previous year. Japan was the largest donor, with a contribution of US$25.49 million or 33 per cent of the total assistance received by the country. Such data did not provide a complete picture. Based on statistics of the Organization for Economic Development and Co-operation (OECD), the contributions of emerging economic powers sharing the national boarder remained uncertain. The role of the Asian Development Bank (ADB) could not be overlooked. In its annual report for 2007, it had stated that it continued to monitor economic development and would formulate an operational strategy when appropriate, and that no loan or technical assistance project had been approved since 1987. This was in contradiction with the fact that in developing the Greater Mekong Subregion Energy Strategy, a regional cooperation programme with the participation of six countries, including Burma, the ADB had been the driving force since the programme's inception in 1992. In many development projects under this scheme, numerous problems had been reported in relation to environmental assessments, the livelihoods of the people affected and damage to the biological and cultural diversity. She indicated her concern with respect to forced relocations and the use of forced labour in Burma.

Concerning the emergency assistance following the cyclone Nargis, there could be no question of opposing the humanitarian aid provided or pledged by many foreign governments to meet the urgent needs of the victims. She called on the Government and donors to ensure that assistance reached the people who were badly in need of it, as well as the country's democratic organizations, and that as the focus shifted from disaster relief to reconstruction no forced labour was used in the process.

She urged the Government to reallocate its budget to make greater provision for health, food, water and education. She also requested other governments to respect and apply the resolution adopted by the 88th Session of the ILC in 2000, to review their relations with the country and to report back to the Governing Body.

The Government member of Canada extended his Government's sympathies to the many thousands in Burma who had lost loved ones and whose lives had been severely affected by cyclone Nargis. The leadership of the United Nations, including its Secretary-General, in coordinating relief efforts with ASEAN and the national authorities was recognized, and the ILO Liaison Officer and his team were thanked for their work under difficult conditions. Although a small, but increasing number of international aid workers were gaining access to affected areas, he expressed concern at the ongoing challenges reported by humanitarian actors.

May 2008 had not been an encouraging month for the Burmese people. A reluctant regime continued to be slow to provide full and unhindered access for humanitarian actors to the affected populations, and his Government called for it to afford such access without delay. A new Constitution had been adopted with no credible consultation of citizens, and the house arrest of Aung San Suu Kyi, who had been in detention for more than 12 of the last 18 years, had been extended once more. His Government had condemned that decision. Such deeply disappointing but entirely predictable developments provided a critical and instructive context for the particular work on forced labour that the ILO had to do in the county.

At its 301st Session (March 2008), the Governing Body had formulated conclusions calling, inter alia, for steps to be taken by the authorities to communicate to their own people the action agreed with the international community, represented by the ILO. The simplest step was the reproduction and dissemination of the Supplementary Understanding in local languages. More demanding, perhaps, was the call for the authorities to make an unambiguous public statement at the highest level reaffirming the prohibition of any form of forced labour and their ongoing commitment to enforcing that policy. The Supplementary Understanding had now been translated into Burmese and discussions were under way concerning its effective promulgation. This development, although modest, was welcome and his Government hoped to see the Supplementary Understanding disseminated soon throughout the country. The unambiguous high-level statement, however, remained unspoken and, as a next step, the authorities were called to make such a statement and implement the recommendations of the Commission of Inquiry in order to bring an end to forced labour.

The reference to forced labour in the new Constitution was not only insufficient; it appeared to be problematic, raising questions about its conformity with the provisions of Convention No. 29. The work of the Committee of Experts was commended and attention drawn to the last line of its report: "The Committee remains hopeful that, having agreed the Supplementary Understanding, the Government will finally take the required steps to achieve compliance with the Convention in law and in practice and resolve one of the most serious and long-standing cases that this Committee has ever had to address."

The Government member of China took note of the statement by the Government representative. Her Government was delighted that the Government of Myanmar had been working closely with the ILO since the conclusion of the Supplementary Understanding. Since the Governing Body had reviewed the situation in March this year, the Government had taken concrete steps.

A referendum had been conducted in May 2008 on the new Constitution which clearly prohibited all forms of forced labour, thereby resolving the remaining legal issue. The ILO's Liaison Office was working closely with local focal points to prevent the use of forced labour. The complaints mechanism was functioning smoothly. The Supplementary Understanding had been translated and was being disseminated by the Ministry of Labour. In collaboration with UNICEF and other agencies, training had been undertaken for trainers. All these efforts indicated the Government's sincere political will to eradicate forced labour.

As seen in the cooperation between the Government and the ILO, there was effective collaboration based on mutual trust for the sustainable well-being of the people. Her Government hoped that the ILO and the international community would remain committed to continuing the constructive dialogue and would provide encouragement and assistance, especially in terms of infrastructure. These would help to eradicate forced labour and guarantee fun damental rights and equality of access to development and its benefits.

The Worker member of Malaysia expressed concern that among ASEAN member States, different standards of practice existed with regard to human rights. The ASEAN Charter stated that its member States adhered to the principle of democracy, the rule of law and good governance, and respect for and protection of human rights and fundamental freedoms. Fundamental human rights needed to be respected, upheld and practised, which he hoped would contribute to establishing the conditions necessary for the realization of decent work for all human beings so as to improve equity and human dignity in the ASEAN area.

Since 1991, the UN General Assembly had adopted 16 resolutions on Burma which directly addressed a range of issues, including denial of human rights, lack of progress towards democracy and the ongoing detention of political prisoners. Strongly worded statements had been issued year after year, highlighting the military nature of the Burmese regime and the failure of the State Peace and Development Council (SPDC) to address the concerns of the United Nations in a meaningful way. Since 1992, the United Nations Human Rights Committee and the Human Rights Council had adopted 15 resolutions on the SPDC's refusal to respect the fundamental human rights of Burma's people. Resolutions had time and again called on the SPDC to end systematic human rights violations, including forced labour and forced relocation, and to respect fundamental freedoms, including freedom of assembly, association, expression and movement.

These United Nations human rights bodies recognized that respect for human rights, the rule of law, democracy and good governance were essential to achieving sustainable development and economic growth, and had affirmed that the establishment of genuine democratic government was fundamental to the realization of human rights and fundamental freedoms. Forced labour could only truly be eliminated by ensuring respect for human decency and human rights. Impunity must also be combated, and there was a need to investigate, prosecute and punish human rights violations, including forced labour, by members of the military and other officials in all circumstances.

Despite attempts by the international community to accelerate the process of finding a political solution and to assist in engaging the SPDC in substantive political dialogue with the National League for Democracy (NLD) and ethnic nationalities, the SPDC had established, as a precondition to dialogue with NLD leader Aung San Suu Kyi, that the NLD abandon its long-standing call for economic sanctions. Although the Special Rapporteur on the situation of human rights in Myanmar, appointed by the United Nations Human Rights Council had been allowed to visit the country to carry out his mandate for the first time in four years, in his final report in March 2008 he stated that the SPDC's initial willingness to address issues under his mandate had disappeared and, regrettably, many recommendations formulated had therefore not been implemented.

This high level of engagement by major international institutions demonstrated the international community's strong commitment to support a process of the restoration of democracy and national reconciliation and the establishment of respect for human rights. However, despite its support for the related initiatives, the permanent members of the UN Security Council had not reached agreement on a binding resolution on Burma.

In December 2007, the UN Secretary-General had established a "Group of Friends" comprising closely interested countries. Following the devastating cyclone Nargis in May 2008, the UN and ASEAN Secretaries-General had intervened to negotiate access for the delivery of humanitarian relief and access for international aid specialists. He expressed satisfaction that the UN-ASEAN-led team had finally been able to assist people in gaining better access to urgently needed humanitarian relief supplies.

The international community had faced great frustration over the years in pushing for political reform and respect for human rights. Measures such as an arms embargo, trade and investment bans, targeted sanctions, visa bans and the freezing of assets had been taken by various governments and should be strengthened. Recalling the conclusions of the 300th and 301st Sessions of the Governing Body and the Special Sitting on Myanmar of the Conference Committee in 2007, he emphasized that the country had made no progress in fulfilling its obligations under Convention No. 29 to eliminate the widespread practice of forced labour. All options available in international law to ensure full implementation of the Convention should be explored, including the possibility of referral to the International Court of Justice. The dignity and rights of the people of Burma demanded nothing less.

The Government member of Japan expressed his Gov- ernment's profound sympathy for the tragedy caused by the cyclone which had claimed so many lives earlier this month.

Since the successful conclusion of the Supplementary Understanding last year, progress had been made in its operation, including the approval of its translation, which was essential to raise the awareness of citizens and workers of their rights under the Understanding. His Government also welcomed the educational activity jointly undertaken by the Ministry of Labour and the ILO Liaison Office which had also served to enhance awareness. The Government's commitment in principle to holding the second round of training soon should also be commended.

His Government hoped that efforts to further enhance awareness would lead to the effective application of the Supplementary Understanding.

His Government appreciated the detailed explanations of the Government representative on the implementation of the laws and regulations against forced labour. With regard to the application of the Supplementary Understanding, he noted with concern the report of the Liaison Officer that a number of complaints on forced labour had been received and submitted to the Government. He expressed the hope that the Government would sincerely examine these cases and take proper and swift action to improve the situation.

A referendum had recently been held on the new Constitution. While recognizing the inclusion of an article banning the use of forced labour, he noted with apprehension the indication by the Liaison Officer that the article contained qualifications, giving rise to questions as to its conformity with the Convention. He expressed the hope that this apprehension would be dispelled as soon as possible.

With regard to the recent cyclone, while earnestly hoping that the country would recover from the disaster as soon as possible, and his Government was ready to maintain its assistance, his Government urged the Government of Myanmar to ensure that there was no risk of the increased use of forced labour, child labour, human trafficking and migrant labour in the recovery and reconstruction processes.

In conclusion, with the reinforcement of the presence and activities of the ILO in Myanmar, he expressed the hope that the Government and the ILO, particularly through its Liaison Officer, would continue their close collaboration and cooperation to address these issues and improve the situation.

The Government member of the United States thanked the Office for the detailed and candid report and commended the admirable work of the Liaison Officer under very difficult circumstances. The ILO had exhibited exceptional judgement in seeking to maintain dialogue with the military regime while simultaneously holding it to the high standards of labour and human rights upheld by the Organization.

She recalled that it was now a decade since the Commission of Inquiry had formulated very specific and clear recommendations to the Burmese authorities to bring the legislation into line with Convention No. 29; end the imposition of forced or compulsory labour by the authorities, in particular the military; and ensure that penalties for forced labour were strictly enforced. The Committee of Experts had also identified four equally clear areas in which measures still needed to be taken by the authorities in order to give effect to the recommendations of the Commission of Inquiry: issuing specific and concrete instructions to the civilian and military authorities; ensuring that the prohibition of forced labour was given wide publicity; providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and ensuring the enforcement of the prohibition of forced labour.

In the light of these recommendations, she noted the modest steps taken in recent months relating to the translation, distribution and publicity of the Supplementary Understanding. However, her Government regretted the lack of more meaningful progress. Although a number of complaints had been registered and processed under the complaints mechanism, there was no doubt that forced labour remained a widespread and serious problem and that the filing or facilitating the filing of a complaint about the exaction of forced labour was still a high-risk activity. Furthermore, based on the Office's report, it would appear that the penalties imposed on military perpetrators of forced labour were not credible and that the article in the new Constitution banning forced labour contained qualifications that might not be in conformity with Convention No. 29. She also noted with concern that labour activists remained in prison, children continued to be coerced into military service and the authorities had still not issued a high-level statement on forced labour.

Although the Supplementary Understanding was undeniably significant, there were evident constraints and limits on the contribution that it and its complaints mechanism could make to the eradication of forced labour in the country. In particular, it did not address the root causes of the problem. Her Government therefore once again called on the regime to implement in full and without delay the recommendations of the Commission of Inquiry and the Committee of Experts.

The present Special Sitting of the Committee was being held in the wake of the devastating national tragedy of cyclone Nargis. She expressed her Government's deepest sympathy to the victims and noted that the President of her country had promised every effort to help the people of Burma recover from the disaster. However, in view of the regime's record, it would be critical to ensure that the reconstruction process did not involve or accommodate the use of forced labour in any of its forms. Anything less was unacceptable.

She added that the elimination of forced labour was inextricably linked to progress in guaranteeing freedom of association and restoring democracy in the country. She expressed deep concern at the general lack of regard for fundamental worker and human rights and noted that her Government had as a consequence imposed broad sanctions against the regime under several legislative and policy vehicles. These measures would be kept under review and additional measures would be considered as long as the authorities failed to end the brutal repression of their own people. Her Government called for the release of all political prisoners and for genuine dialogue with Aung San Suu Kyi, the National League for Democracy and other democratic and ethnic groups on a transition to democracy. Such a dialogue could only have a positive effect on eliminating the scourge of forced labour in the country.

The Worker member of the Republic of Korea called on all ILO constituents to take action in line with the 2000 resolution. It was regrettable that more than 400 multinational companies continued to support directly or indirectly the military regime's repression of the Burmese people, the use of forced labour, the denial of freedom of association and other human rights abuses, by maintaining business ties with Burma. For the past 20 years, foreign investment had been flowing to Burma, 98 per cent of which went to the oil, gas and power sectors last year. Gas exports accounted for half of the country's exports in 2006 and the sales to its main buyer, Thailand, brought in US$2.16 billion. The funds strengthened the military's capacity for repression because most business was carried out through joint ventures with the military or directed through military-owned and -operated companies. A "production-sharing contract" between foreign companies, many of which were partially or wholly governmentowned, and the Myanmar Oil and Gas Enterprise (MOGE), specified how much the company had to pay the Burmese regime in fees and taxes.

For example the Yadana pipeline, a Chevron-led project carrying natural gas to Thailand, was the military regime's financial lifeline. Yadana gas production in 2007 amounted to approximately 758 million cubic feet per day, 650 million of which was exported. The Burmese military's estimated budget, which supported a massive armed force of 428,000 troops, could be completely funded by the revenues from the Yadana Project (about US$972 million a year). Moreover, many human rights abuses occurred in the gas pipeline region, including murder and rape by pipeline security soldiers, forced con- scription of porters for security patrols, land confiscation, forced plantation programmes, and widespread theft of goods. Another example was the Shwe gas project, which brought in between US$600 and $850 million to the military regime. The Shwe gas consortium was composed of the South Korean company Daewoo International, stateowned companies from India and the Republic of Korea, and MOGE.

Many of the problems in the Burmese economy stemmed from the fact that investment in the oil and gas sector, and other extractive industries, did not generate significant employment nor ensured substantial transfer of skills or technology to local people. This implied that, while the benefits to the regime were great, benefits to Burma's people were very limited.

Whereas more and more governments, especially in the wake of the brutal crackdown on Burmese protesters in September 2007, did impose sanctions on Burma, the country's neighbours and other economic powers in the region seemed ever more eager to do business with the regime. The Republic of Korea, the Russian Federation and Singapore were some of the largest investors in the oil and gas sector last year, and China was the main foreign investor in the power sector (US$281 billion). With respect to trade, investment, economic cooperation and political influence taken together, Burma's three immediate neighbours stood out as the main backers of the regime, and hence as the holders of the keys to the freedom of the Burmese people.

It was therefore crucial that all governments, international institutions, workers' and employers' organizations fully implemented the 2000 resolution, that targeted economic sanctions, in particular relating to import and export of goods, were imposed to stop the financing of the military regime, and that a total arms embargo was implemented as suggested by the European Union. The conclusions of the Committee should call for the adoption of an enhanced reporting mechanism and for a multistakeholder conference to be convened by the ILO to ensure full implementation of the 2000 resolution.

The Government member of India expressed his Government's satisfaction at the tangible progress that had been made and the further strengthening of cooperation between the Government of Myanmar and the ILO. The translation of the Supplementary Understanding and its publication on the web site of the Ministry of Labour was welcomed, as was the progress in the ILO Liaison Officer's work which was being facilitated by the Government of Myanmar. It was a matter of satisfaction that cases concerning forced labour were being resolved through the mutually agreed mechanism between the Government of Myanmar and the ILO. The institutional mechanism to address the issue of recruitment of underaged soldiers was functioning effectively. India had always encouraged dialogue and cooperation between the ILO and the member States to resolve all outstanding issues. The ILO Director-General was commended for his efforts in assisting Myanmar to eradicate the practice of forced labour. His Government continued to remain strongly opposed to the practice of forced labour, which was expressly prohibited under the Constitution of India. The Government of India therefore welcomed recent de- velopments and progress on the issue of the eradication of forced labour in Myanmar.

The Worker member of Italy expressed her concern about the ongoing implementation of the Supplementary Understanding and the impact of the recent humanitarian crisis on the use of forced labour. Persons associated with the complaints mechanism had expressed concerns over reports of harassment and detention; despite that, at its November 2007 session the Governing Body noted some progress in the operation of the Supplementary Understanding. At the March 2008 session, the Workers' group welcomed the extension of the trial period of the Supplementary Understanding, thereby recalling that rapid progress should have been seen by the present session of the Conference, in line with the decisions already taken by the Governing Body. Unfortunately, the decisions had not yet been implemented. Only on 2 May 2008, did the Government approve the translation of the Supplementary Understanding and its publication on the ministerial web site.

The Committee of Experts' conclusions underlined that there were obvious constraints and limits on the contribution that the complaints mechanism could make to the eradication of forced labour because of its structural limitations and that whilst valuable, it does not address the root cause of the problem of forced labour. This same preoccupation is shared by the Worker members. The Liaison Officer's report indicated that his activities are mainly concentrated on the implementation of the Supplementary Understanding, while his work should be focused primarily on the implementation of the recommendations of the Commission of Inquiry. In order to overcome such constraints, the need of putting more human and financial resources at his disposal was underlined.

To date, and despite the increase of forced labour, only 89 complaints had been received, many of which had been rejected by the authorities as minor community work or because they were considered to be beyond the mechanism's mandate. According to the workers, the rejection of some complaints might be in contradiction with the Committee of Experts' jurisprudence, for example, on land confiscation, which the Committee of Experts regularly considered to be a form of forced labour. In addition, while the junta accepted complaints of forced recruitment of children for labour, very few and irrelevant sanctions had been imposed on the military.

In such a situation, the lack of political commitment, the absence of information and of consequent awareness- raising initiatives, the physical inability of victims to complain, and the fear of reprisal constituted major obstacles for reporting. Furthermore, it was unacceptable that the Liaison Officer was not authorized to present complaints himself. Therefore, it was reiterated that the Committee's conclusions should reaffirm the following previous decisions: that a formal statement be published at the highest level and in all local languages stating that all forms of forced labour are prohibited and will be duly punished; that a wide network of complainant facilitators is urgently put in place including in the combat zones; that the Government urgently provide the reproduction of the Supplementary Understanding in all local languages and ensure wide dissemination and publication of awareness-raising materials; that the mechanism under the Supplementary Understanding remain fully functional with no further detention or harassment of complainant facilitators or others, that adequate penalties are enforced toward perpetrators, and that forced labour victims are able to access easily the complaints mechanism; and that the Liaison Officer is able to move freely throughout the country and is able to raise complaints himself.

The Burmese people were now living in a new intolerable situation which was not only a direct result of the cyclone, but also a result of the junta's inhuman actions, its imposition of a referendum with predefined results, its refusal to act, and its obstruction of the international community's help, causing an even greater humanitarian crisis.

Reports had already been received of forced labour being exacted by military and local authorities in the Irrawaddy Delta area. One example was the case of the Maubin displacement camp, where 1,500 men and women were forced to work in quarries. In the village of Ngabyama in the Southern Bogale township, authorities had forced survivors to cut trees and reconstruct roads. In Bogalay, soldiers had used local people for forced labour. All these examples confirmed the validity of the alarm raised by the Liaison Officer's report underlining the increased risk of incidence of forced labour, child labour, human trafficking and migrant labour in the Irrawaddy Delta region. The Liaison Officer was thanked for his huge work, particularly in view of the situation and during the early recovery cluster work set up by the UN agencies present in Burma.

In this regard, the Committee's conclusions should emphasize the need for the promotion of Convention No. 29 and fair labour practices in the relief and reconstruction activities, through procedures involving the ILO to ensure respect for the Convention, and to include democratic organizations in the reconstruction process. More human and financial resources should be allocated to the ILO for such activities. It was unacceptable that under the pretext of the humanitarian crisis, fundamental human rights were being denied to the victims of the dictatorship and of the humanitarian crisis.

The striking tragedy in which the Burmese people found themselves struggling for their lives, their freedom, and their human rights needed a consistent and clear answer from the Committee and from the International Labour Conference as a whole. As the Commission of Inquiry had stated, the forced labour occurring in Burma was a crime against humanity. There was a need to act consistently using all means available through international criminal law and from previous Governing Body decisions. The Office should prepare a request for an advisory opinion from the International Court of Justice on the violation of Convention No. 29 because the Burmese people deserved it.

The Government member of Australia expressed the sympathy of his Government and the people of Australia to the people of Myanmar for the loss of life, suffering and devastation caused by cyclone Nargis. His Government stood ready to help the people of Myanmar in their time of desperate need and was pleased to have been able to make a contribution to the relief effort. The damage caused by the cyclone was extensive and reconstruction in the affected areas, particularly the Irrawaddy Delta, would be a huge task. It would be critical that forced and child labour were not used in the reconstruction effort. The international community had already made a generous contribution to the relief efforts in the affected areas. If the Government of Myanmar would engage constructively with the international community and allowed relief agencies full access to the affected areas, a much greater level of international assistance would be possible.

He expressed his Government's continuing appreciation of the ILO's ongoing efforts to encourage the Government of Myanmar to respect its international obligations under the Convention. In this regard, his Government paid tribute to the efforts of Executive Director, Mr Kari Tapiola, to the Special Adviser, Mr Francis Maupin, and to the Liaison Officer, Mr Steve Marshall. They had all continued to seek out progress on this vital issue for the benefit of the people of Myanmar and his Government would like to extend its full support and encouragement to them.

The mechanism established by the Supplementary Understanding had played a role in providing an avenue for a limited number of people in Myanmar to allege violation of their right not to be forced into labour. Through the dedication and attention of the Liaison Officer, several people had benefited from the operation of the mechanism. However, the results achieved by the mechanism to date had been modest at best.

The Government of Australia remained concerned that the limited number of cases reflected a lack of awareness in Myanmar of the operation of the mechanism and of the people's right to complain, the logistical difficulty people faced in registering a grievance and their fear of reprisals. Further, he expressed the Government's grave concern about the situation of six labour activists who had been imprisoned in 2007 for sedition, and for U Thet Wai, who was arrested on 24 February 2008, for being in possession of information on forced labour issues. It was further concerned that the outcome of many of the cases brought to the ILO's attention appeared far from satisfactory. Only one case had resulted in prosecutions being pursued by the Government. The ILO's assessment that, "There con- tinues to be differences of opinion as to the appropriate remedy for complaints and punishments for perpetrators", was worrying and indicated a continuing lack of commitment by the Government and authorities of Myanmar to see justice done.

The Australian Government shared the ILO's assessment that the mechanism could play an important role in helping the ordinary people of Myanmar and address the scourge of forced labour. However, a far greater commitment from the Government of Myanmar would be required to achieve this end.

As an immediate sign of this commitment, his Government strongly urged the Government of Myanmar to make readily available to all of its citizens an unambiguous public statement that all forms of forced labour were prohibited. It also urged the Government of Myanmar to ensure that adequate publicity was given to the Supplementary Understanding in appropriate languages. In this regard, it was very important that the Government made available a suitable translation of the Understanding in the Myanmar language as soon as possible. Any further delay implementing these basic steps could only be interpreted in a most negative way.

Finally, he noted that the mechanism could only ever be part of a broader solution, and the recommendations of the Commission of Inquiry showed the direction that any genuine attempt by the Government would take to meet its international obligations. To reiterate, the Commission recommended that the Government of Myanmar, without delay:

- bring its legislation into conformity with the Forced Labour Convention;

- cease its exaction of forced labour, particularly by the military;

- ensure the public is informed of the illegality of forced labour; and

- strictly enforce the criminal penalties in its legislation pertaining to the exaction of forced labour.

The Worker member of Bangladesh expressed solidarity with the Burmese people who were fighting for their legitimate rights and democracy. More recently, the population had been severely affected by cyclone Nargis. Unfor- tunately, the Government of Myanmar had been preventing international aid efforts, while violations of Convention No. 29 continued. Bangladesh, as a neighbouring country, was receiving large numbers of Burmese refugees. This placed a heavy burden on Bangladesh which itself was a least developed country. All trade unions, employers' organizations, governments, as well as the ILO Director-General, were called upon to take the steps necessary to end forced labour in Myanmar.

The Government member of the Russian Federation expressed his Government's sympathy to the people of Myanmar for the loss of life and suffering caused by the natural disaster and wished a prompt reconstruction of the affected regions. His Government noted with satisfaction that the Supplementary Understanding had been extended for a further 12 months. It welcomed the following developments which confirmed that constructive dialogue between the Government of Myanmar and the ILO was taking place: the creation of a working group within the Ministry of Labour to examine complaints of forced labour, and involvement of the Ministry of Defence in examination of such complaints; two ILO officials were working in Myanmar, thus enhancing the effectiveness of the ILO's actions; the recently adopted Constitution explicitly provided for the prohibition of forced labour; and the pub- lication of the text of the Supplementary Understanding on the official web site of the Ministry of Labour. The ILO and the Government of Myanmar should therefore continue constructive cooperation with a view to ensuring implementation of Convention No. 29.

The Government member of Cuba welcomed the results so far achieved to comply with the objectives fixed by Convention No. 29. He further underlined that such results were exclusively accomplished thanks to the cooperation between the ILO and the Myanmar authorities. The coercive measures, public condemnations, blockades and other punitive actions, far from contributing to the improvement of the conditions required to fulfil the objectives set forth in the ILO's Conventions, had a counterproductive effect. All conclusions to be adopted by the Committee should be based on the continuity of technical cooperation, as well as on the open and unconditioned dialogue with the Myanmar authorities.

The Worker member of Indonesia stated that forced labour remained among the most pervasive human rights violations in Burma, involving harassment, threats and physical abuses. Forced labour undermined the livelihoods of whole communities and led to the complete collapse of village economies, large-scale displacement and refugee flows. Both the army and local authorities continued to force thousands of people to work in brick baking, construction of roads and military facilities and agriculture, including plantation for biofuel production. Portering services for military purposes also continued. Many forced labourers who had escaped from the army reported that hundreds of people had been used as porters after having served prison sentences.

In October 2007, in the Tangoo District, the Military Operation Command No. 9 obliged the villagers of Play Has Loh to carry out work for the army, including cutting of bamboo poles and carrying of soil. The Military Operation Command No. 5 forced hundreds of villagers to carry military supplies, and to clear an army camp and roads. On 14 November 2007, the Light Infantry Battalion 599 forced hundreds of villagers to build army offices and camps in the Kler Law Htoo District. Other examples of forced labour exacted by the army occurred in December 2007 in Hakha and Mantaw townships in Chin State, and in January 2008 in Mong Hsat in Shan State. Forced labour was essential for the survival of the army and serious political commitment was needed to stop this vicious circle.

In November 2007, the army decided to establish a new model village in Nurullah, Arkan State. Following confiscation of lands, villagers were forced to prepare the land for construction and carry building materials. In January 2008, the villagers were ordered to complete the construction of 120 houses within a month. By the end of April 2008, 200 houses had been built. None of the 200 to 270 labourers from nine villages that were used in this project had been paid.

The approaching monsoon season would create a dramatic situation in the delta region. The authorities were bringing cyclone victims back to their destroyed villages with no aid supplies and there were reports of new cases of forced labour imposed by the army and local authorities in the devastated areas.

The ILO and its member States were urged to take the most effective measures for the immediate and full compliance with Convention No. 29 and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The world could not sit by while the Burmese people were suffering. The Government must implement fully the recommendations of the Commission of Inquiry. As a matter of urgency, the military, particularly the regional commanders, and the local authorities must change the existing laws, behaviour and practices. It was crucial that the authorities made an unambiguous public statement in all local languages concerning the prohibition of forced labour and that a consistent budget for public works was defined. Further, respect for freedom of association must be ensured for all workers to allow them to organize and denounce forced labour. The Government and the international institutions were called upon to assist in the relief and reconstruction programmes. All trade union activists and political prisoners, including Aung San Suu Kyi, should be released.

The Government representative of Myanmar noted that a number of speakers had acknowledged the efforts made by its authorities and the progress achieved so far. Those who had expressed different views had their own agendas, attempting to undermine the Government's efforts. The Government representative also expressed the hope that the Committee members would henceforth refer to his country by its official name as included in the new Constitution which had been approved by referendum.

The Worker members wished to focus on the conclusions, which should, in their view, include the following points: a request to liberate Aung San Suu Kyi as well as trade union activists and political prisoners who had exercised their right to freedom of expression and freedom of association; the recognition of the Federation of Trade Unions of Burma (FTUB), which should no longer be considered as a terrorist organization by the authorities; the immediate cessation of harassment and the liberation of persons submitting complaints of forced labour. Finally, the conclusions should also deplore the fact that persons having recourse to forced labour did not incur penal sanctions.

Whereas recalling the need to implement urgently the recommendations formulated by the Commission of Inquiry ten years ago, the Worker members underlined that the Government also needed to implement fully all decisions taken in the past by various ILO bodies, including the 2006 conclusions of the Selection Committee and subsequently reaffirmed by the Governing Body. Some of the following issues needed to be subject to serious consideration: the Office should call on governments, employers, international organizations, financial institutions and international or regional banks, to modify or suspend, according to their mandates, their direct or indirect relations and programmes with the enterprises of the Government, of the military or of the Burmese private sector; a reporting mechanism should be established, on the basis of a user-friendly questionnaire, concerning the measures to be implemented in accordance with the recommendations contained in the 2000 resolution; conferences including the various actors should be organized in order to discuss the best way to enforce the resolution of 2000; measures available under international criminal law should be applied to punish those guilty of imposing forced labour; the ILO and governments should inform the public through a special page on the ILO's web site; the Government should put in place a network of facilitators in order to examine complaints, at the same time ensuring the increased implementation at the national level, including in the conflict areas, of the Supplementary Understanding, through its translation in all local languages, as well as through public awareness campaigns; the ILO Liaison Officer should be able to submit complaints and to effectively make the necessary investigations.

The Worker members requested that governments not recognize the new Constitution. Furthermore, they reserved the possibility of submitting to the International Court of Justice a request for an advisory opinion regarding the consequences in international law of the violation by Burma of Convention No. 29. Concerning the tragic humanitarian situation, the Worker members, by way of conclusion, requested the Office to ensure - through promotional measures and information on cases of good practice - the implementation of Convention No. 29 in the context of the country's reconstruction activities. In this regard, the Office should enjoy increased human and financial resources, as well as the cooperation of other international agencies in order to monitor compliance with Convention No. 29. The Government should allow all democratic organizations to participate freely in the reconstruction activities, as well as inform the ILO's Governing Body, at its next session in November 2008, of any measures taken to implement the Committee's conclusions.

The Employer members stated that the Government's response had been lacking any serious commitment to end forced labour. The Government had failed to take the steps necessary to this end. Widespread forced labour continued to exist and the right to freedom of association was being violated with impunity, contrary to Myanmar's international obligations. The Government did not appear to understand the consequences of its human rights abuses. Violations of human rights were not only harmful for the country's citizens, but also caused the Government to lose its moral authority to govern the country and its credibility within the community of nations. In addition, disrespect of human rights impeded economic development, as broad-based and continuous investment would not take place where democracy and civil liberties were inexistent and where human development remained at a low level. The Employer members expressed their profound concern that forced labour in Myanmar continued as widespread as before. Concrete and verifiable evidence that the practice of forced labour was being eradicated was needed on an urgent and comprehensive basis.

The Worker members stated, in their acceptance of the conclusions, that they also understood that the reference in the conclusions to the discussion and decisions of the Governing Body in March 2007, November 2007 and March 2008, and to the decisions adopted by the Conference in 2000 and 2006 concerning compliance by Burma with Convention No. 29, effectively incorporated the Worker members' suggestions for this year's conclusions, including an International Court of Justice advisory opinion at the necessary time. The Worker members also reiterated the need for the ILO Liaison Officer to be able to submit complaints and make the necessary investigations.

Not reproduced:

Document D.5

B. Report of the Liaison Officer to the special sitting on Myanmar (Convention No. 29) of the Committee on the Application of Standards

Document D.6

C. Special sitting to examine developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

1. Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29), by Myanmar

2. Conclusions of the Committee on the Application of Standards in its special sitting to examine developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) (International Labour Conference, 96th Session, June 2007)

3. Documents before the Governing Body at its 300th Session (November 2007)

4. Documents before the Governing Body at its 301st Session (March 2008)

Conclusions

The Committee extended its sympathies and condolences to the people of Myanmar in the wake of cyclone Nargis. It expressed its sincere hope that the continuing humanitarian needs would be met and that the required rehabilitation and reconstruction work would be undertaken, without any use of forced labour and in a spirit of cooperation and constructive dialogue, in full respect of civil rights and international labour standards.

The Committee noted the observations of the Committee of Experts and the report of the ILO Liaison Officer in Yangon that included the latest developments in the implementation of the complaints mechanism on forced labour established on 26 February 2007, with its trial period extended on 26 February 2008 for a further 12 months. The Committee also noted the discussions and decisions of the Governing Body of March 2007, November 2007 and March 2008. It also took due note of the statement of the Government representative and the discussion that followed.

The Committee noted that certain steps had been taken in the application of the Supplementary Understanding, and that some awareness-raising activities had taken place since the last session of the Conference in June 2007. However, it expressed its concern that these steps were very small and considered that much more needed to be done with commitment and urgency. In particular, the Government should, as requested by the Governing Body, make, without delay, an unambiguous statement at the highest level that the exaction of forced labour was prohibited and that violators would be prosecuted and convicted. It also expressed concern at the restrictive provisions in the newly adopted Constitution which could raise issues of compliance with Conventions Nos 29 and 87 ratified by Myanmar.

The Committee expressed its profound concern that forced labour in Myanmar, including the recruitment of children into the armed forces, remained as widespread as before, as reflected in the observation of the Committee of Experts. None of the recommendations of the Commission of Inquiry had yet been implemented, and the exaction of forced labour continued to be widespread, particularly by the army. Any instructions to cease the practice of utilizing forced labour appeared to have been disregarded regularly and with impunity. Similarly, although it was now some 15 months since the coming into effect of the Supplementary Understanding, a translation of it had only recently been approved for distribution. The Committee continued to be concerned that awareness of the existence of both the legal provisions against forced labour (Order 1/99) and the complaints mechanism under the Supplementary Understanding, remained very low. The Committee urged the Government to give early approval to the translation, in all local languages, of an easily understandable brochure, for wide public distribution, explaining the law and the procedure for lodging a complaint under the Supplementary Understanding.

The Committee took note that the complaints mechanism on forced labour continued to operate and that the authorities were investigating cases referred to them by the Liaison Officer. However, the Committee expressed its continued concern that penalties imposed on perpetrators of forced labour had, in general, not been imposed under the Penal Code. As a result, no criminal convictions of members of the armed forces had taken place.

The Committee noted that an international professional staff member has been appointed to assist the Liaison Officer. The Committee emphasized that it was critical that the Liaison Officer had sufficient resources available to undertake his responsibilities. The Committee underlined that there was an urgent need that the Government accepts a strengthened network of facilitators to deal with complaints from all over the country. The Committee noted with concern the reported cases of retaliation and harassment against complainants and volunteer facilitators who cooperated with the Liaison Officer. Such action was a fundamental breach of the Supplementary Understanding. The Committee called on the Government to ensure that all retaliation and harassment - based on any legal or other pretext - ceased with immediate effect and that the perpetrators were punished with the full force of the law.

The Committee recorded with extreme concern that many people remain in prison for exercising their rights to freedom of expression and association. The Committee called for the immediate release of these persons and, in particular, for the release of Daw Su Su Nway, U Min Aung and U Thurein Aung and his associates: U Kyaw Kyaw, U Shwe Joe, U Wai Lin, U Aung Naing Tun and U Nyi Nyi Zaw. These persons all had links with the ILO and were labour activists legitimately seeking to achieve acceptance of international labour standards and, in particular, those ratified by the Government of Myanmar. The Committee re-emphasized the expectation of the Governing Body that U Thet Wai remain free from further persecution and detention.

The Committee also stressed the need to allow all citizens of Myanmar to fully exercise their civil rights, and called on the Government to immediately end the detention of Daw Aung San Suu Kyi. It also recalled the recommendations of the Committee on Freedom of Association, in March 2008, with respect to trade union rights and the recognition of trade union organizations, including the Federation of Trade Unions of Burma (FTUB).

The Committee also recalled the continued relevance of the decisions adopted by the Conference in 2000 and 2006 concerning compliance by Myanmar with Convention No. 29.

The Committee strongly urged the Government to take all the necessary measures to give full effect to all of the recommendations of the Commission of Inquiry, without any further delay. It urged the Government of Myanmar to provide full information to the Committee of Experts in time for its next session later this year, including concrete and verifiable evidence of action taken with a view to the full implementation of the recommendations of the Commission of Inquiry.

The Worker members stated, in their acceptance of the conclusions, that they also understood that the reference in the conclusions to the discussion and decisions of the Governing Body in March 2007, November 2007 and March 2008, and to the decisions adopted by the Conference in 2000 and 2006 concerning compliance by Burma with Convention No. 29, effectively incorporated the Worker members' suggestions for this year's conclusions, including an International Court of Justice advisory opinion at the necessary time. The Worker members also reiterated the need for the ILO Liaison Officer to be able to submit complaints and make the necessary investigations.

Not reproduced:

Document D.5

B. Report of the Liaison Officer to the special sitting on Myanmar (Convention No. 29) of the Committee on the Application of Standards

Document D.6

C. Special sitting to examine developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

1. Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29), by Myanmar

2. Conclusions of the Committee on the Application of Standards in its special sitting to examine developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) (International Labour Conference, 96th Session, June 2007)

3. Documents before the Governing Body at its 300th Session (November 2007)

4. Documents before the Governing Body at its 301st Session (March 2008)

Individual Case (CAS) - Discussion: 2007, Publication: 96th ILC session (2007)

A. Record of the Discussion in the Committee on the Application of Standards

A Government representative of Myanmar noted that many positive developments had taken place since the last examination of this issue, thanks to the firm commitment of the Government and the steadfast cooperation and patience of the ILO. A Supplementary Understanding establishing a complaint mechanism for victims of forced labour was concluded on 26 February 2007 and came into force immediately. Wide publicity was given to it through a press release issued by the Permanent Representative of Myanmar in Geneva, clarifications provided by the Director-General of the Department of Labour to foreign journalists in Myanmar and, finally, a web site on labour matters, including the Supplementary Understanding, launched by the Ministry of Labour on 3 April 2007.

Noting that justice delayed is justice denied, the Government representative emphasized that the cases involving forced labour which had been transmitted by the Liaison Officer to the Working Group headed by the Deputy Minister of Labour, were immediately investigated and this had resulted in their quick resolution. A majority of ILO member States had recognized that Myanmar was effectively implementing the Supplementary Understanding. The existence of the complaint mechanism was well known to the public, as evidenced by the receipt of complaints from many parts of the country. The Government was confident that this mechanism would become an effective tool in the joint effort to eradicate the practice of forced labour. In addition, the authorities had taken prompt legal action against those who had committed forced labour and these actions were published in the national newspapers, thus enhancing the credibility of the mechanism.

However, even though only nine cases involving forced labour had been received within three months of the implementation of the Supplementary Understanding, it was regrettable that there had been various attempts to increase the number of complaints, taking advantage of a clause in the Supplementary Understanding prohibiting any action being taken against complainants or their representatives due to the complaint. The Government considered that these attempts might undermine the smooth functioning of the mechanism for the bona fide victims.

Pursuant to the 298th Session of the Governing Body during which the importance of the continuous effective functioning of the complaint mechanism and the need for adequate staff resources were underlined, the Government recognized that the continued functioning of the mechanism was in the interest of the victims of forced labour and, therefore, the Deputy Ministry of Labour received the ILO Liaison Officer a.i. on 8 April 2007 and assured him that full cooperation would be extended in dealing with future complaints. There had been no disagreement between the two sides on the necessary appropriate steps to be taken to enable the Liaison Officer or his successor to discharge effectively the additional work and responsibilities. As the mechanism had been in place for only three months, the necessary adjustments could be made to the staff capacity in a reasonable time and after due consultation, as stipulated in paragraph 8 of the Supplementary Understanding. Finally, the Government of Myanmar would take into consideration the request of the Governing Body to extend the necessary cooperation and facilities.

The Government representative reiterated his Government's position regarding the participation of the members of the Free Trade Union of Burma (FTUB) which the Ministry of Home Affairs of Myanmar had declared as terrorists in its Notification No. 3/2005 and Declaration No. 1/2006 issued on 28 August 2005 and 12 April 2006, respectively. This participation would in no way contribute to the worthy efforts and intensified cooperation between Myanmar and the ILO so as to eliminate the practice of forced labour, but simply complicate the matter.

As Mr Richard Horsey had decided to end his assignment as ILO Liaison Officer a.i., Myanmar had positively responded to the appointment of Mr Stephen Marshall to this post. The Government would extend to him the facilities and courtesies that had been extended to his predecessor whose essential role in the effort to eliminate forced labour practices was recognized.

Finally, the Government representative emphasized that the conclusion of the Supplementary Understanding and the resulting establishment of a complaint mechanism were the most significant developments in the history of cooperation between Myanmar and the ILO. This achievement testified to a genuine spirit of cooperation from both sides, which was essential for the mechanism to continue to function effectively. The Government representative assured the Committee that every effort would be made to enable the mechanism to function effectively and stated that his Government looked forward to receiving the same spirit of cooperation and accommodation from the ILO and its Members.

The Employer members recalled that the discussion aimed at examining, in line with the 2000 resolution of the International Labour Conference, the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) on the basis of the report of the Committee of Experts and in particular, the implementation of the Commission of Inquiry recommendations. They recalled that regular discussion of this case went back over 25 years without any real progress having been made despite a variety of commitments and promises by the Government. Even taking into account recent developments, no real commitment had been made by the Government to meet its international obligations under Convention No. 29, both in law and in practice and to put an end to the intolerable climate of impunity. As made clear by the Committee of Experts in its latest observation, the Government had not even come close to implementing the measures recommended by the Commission of Inquiry, i.e. that legislative texts, in particular the Village Act and the Towns Act, be brought into conformity with the Convention, that the authorities cease to impose forced or compulsory labour in practice and that the sanctions provided for imposing forced or compulsory labour be strictly applied. The Committee of Experts had also noted with concern the lack of information provided by the Government on almost all the issues raised in its observation. Such information would constitute a clear and unequivocal sign of willingness to cooperate genuinely with the supervisory bodies.

The Employer members expressed regret that not much appeared to have changed regarding the need to amend legislative texts, which the Government had long been promising to do, without any compelling reasons given for not doing so. The Employer members reminded the Government that the only sustainable solution to this matter, in the absence of a clear political will to amend the Village Act and the Towns Act, was to repeal them and that immediate action should be taken in this direction.

The Government had not supplied any copies of precise and clear letters and instructions to the civilian and military authorities indicating that forced labour had been declared unlawful in Myanmar. Nor had the Government taken any action with regard to the need to give wide publicity among the population to the prohibition of forced labour. The Employer members concurred with the Committee of Experts that a starting point for the eradication of forced labour was to give very clear and concrete instructions to the authorities of the kinds of practices that constitute forced labour and to engage in a wide publicity campaign so that this information could be disseminated among the entire population. They once again stressed the importance of having recourse to a wide publicity operation by using mass media such as newspapers and broadcasting. The Employer members also expressed concern at the lack of transparency and cooperation by the Government in providing information to the Committee on the budgeting of adequate means, so that paid labour could replace forced or unpaid labour. It was absolutely necessary to demonstrate serious and genuine commitment by making the budgetary allocations.

The Employer members noted some possibly encouraging developments, i.e. the release of Aye Myint and the ending of the prosecutions in Aunglan, and the signing of the Supplementary Understanding establishing a mechanism to facilitate the free investigation of complaints of forced labour with protection extended to complainants. However, as there had been so many false promises in the past, they maintained their substantial scepticism and doubts, despite their clear desire to see in this mechanism an effective means to identify and suppress forced labour and make offenders subject to prosecution. They acknowledged that the mechanism had come into force immediately and that only three months had passed since its implementation with some positive results. They called on the Government to ensure that all necessary steps would be taken in the very near future to give additional visibility to the Supplementary Understanding and the functioning of the mechanism.

For this mechanism to work in the long term and given the increased workload imposed on the Liaison Officer, the issue of allocation of resources played a key role. It was absolutely necessary that the Office quickly assign suitable international staff to assist the Liaison Officer and that the Government extend the necessary cooperation and facilities to that end.

In conclusion, the Employer members emphasized that the Supplementary Understanding was not the end of the process as the Government seemed to see it, and called upon the Government to follow up on it by repealing the Village and the Towns Acts, ensuring that the prohibition of forced labour was given wide publicity and providing the necessary funds for the eradication of forced labour.

The Worker members pointed out that it would be worth designating a day of the International Labour Conference as "World Day for Democracy in Burma", as this issue had been a Conference agenda item for so long without the situation having undergone any significant change. This year again the Committee of Experts had repeated the recommendations made by the Commission of Inquiry in 1997, viz. the need to amend national legislation, particularly the Village and Towns Acts, the need for forced labour practices to cease, particularly by the military, and that the sanctions foreseen be applied effectively. The Government of Myanmar should in this respect especially give instructions to the civil and military authorities; publicize the ban on forced labour; provide for funds to remunerate work which was presently forced labour; and have the ban respected. The Committee of Experts had once again provided an inventory of the evolving situation or rather of the promises made and not kept. In order to fight discouragement, the Committee of Experts could consider including in its report more information on facts reported in trade union releases and particularly the elements of the discussion at the special sessions of the Conference. In this way, it might avoid the continual silence and refusals by the Government to supply information on orders which were supposed to be given to the military, purported awareness raising among the population, or information on budget allocations supposedly earmarked for the payment of work.

He noted in fact that each step forward was offset by a step backward. Therefore, although welcoming the signing of the Supplementary Understanding of February 2007 on a complaint mechanism, as well as the work carried out in often extremely difficult circumstances by the Liaison Officer a.i., one should not overestimate the impact of such a mechanism, which could not mask the fact that there had been no progress in the implementation of the recommendations and measures to be taken. The reply given by the Ambassador of Myanmar in no way constituted a satisfactory reply to the resolution of 2000 which called for amendments to the law, the giving of instructions to the civil and military authorities, the organization of a publicity campaign on the prohibition of forced labour, budgetary arrangements to remunerate current forced labour, and for the application of sanctions. Consequently, the mechanism was only an instrument, not a measure for the elimination of forced labour, as evidenced by the 23 complaints received since the signing of the Supplementary Understanding. The situation therefore remained very serious as would be demonstrated by many other interventions from the Worker members.

Another spokesperson for the Worker members recalled that this case had been subject to reports by the Committee of Experts for over 25 years and had been of critical concern to the labour movement in his country, the United States, where the AFL-CIO supported legislation passed in July 2003 prohibiting United States trade relations with the Burmese military junta regime. Based on the report of the Committee of Experts and the response of the Government, including its reference again to an independent and democratic trade union organization, the FTUB, being a terrorist organization, these economic measures were more than justified. However, concerns were raised by recent information indicating that United States' multinational enterprises were doing business in Burma under the guise of local corporate operations, in possible contravention of the 2003 legislation.

The Worker members expressed regret at the fact that nine years after the recommendations of the Commission of Inquiry, the case continued to be one of profound and fundamental non-compliance as shown by the Committee of Experts' report and the Government's response. Although the Governing Body had decided in March 2007 to defer the question of an advisory opinion by the International Court of Justice (ICJ) until the necessary time, it was also stated in paragraph 6 of document GB.298/5/2 that an issue that could be referred to the ICJ was whether the required cooperation and actual progress in the implementation of the recommendations of the Commission of Inquiry met the relevant threshold. This threshold had, in their opinion, hardly been met, let alone approached.

With regard to the Supplementary Understanding signed between the ILO and the Government in February 2007, the Worker members recognized and welcomed the premise in the agreement to prohibit judicial and retaliatory action against complainants and enhance the capacity of the Liaison Officer. However, it was totally misplaced to conclude that this measure by itself meant that the Commission of Inquiry's recommendations had been met. The Supplementary Understanding's limited content had been adopted on a 12-month trial basis only. The most fundamental limitation was that, even under the best of circumstances, it was essentially based on complainants coming forward thus exposing themselves to the risks of the regime's justice system. The instrument, by itself, only scratched the surface of a non-compliance problem that was structural, chronic and omnipresent. As indicated by the democratic and independent Federation of Trade Unions Kawthoolei (FTUK) to the ITUC Burma Conference which took place in Kathmandu in April 2007, the new ILO reporting mechanism for victims of forced labour was unlikely to work because villagers could not get to Rangoon to report abuses even if they were willing to risk the inevitable punishment by the State Peace and Development Council (SPDC) if they did speak out. Karen State villagers could not travel easily to Rangoon because many of them faced movement restrictions by the SPDC, were too poor to afford travelling costs and were struggling to farm enough food to survive. With regard to the State of North Arakan, identified by the ILO as one of the regions with the greatest prevalence of forced labour, the Rohingya ethnic group could not exercise freedom to travel and Rangoon was totally off limits, thus preventing complaints coming to the ILO office for all intents and purposes. Moreover, there were thousands upon thousands of Burmese victims of forced labour who had sought refuge and asylum in Bangladesh, Malaysia or Thailand with no evident or effective means and safeguards to bring forward complaints pursuant to the Supplementary Understanding. Finally, reports by the FTUK, the FTUB and the Arakan Project, relying on accurate interviews with courageous eyewitnesses, indicated widespread and unchecked practices of forced labour in Karen State, Northern Arakan State and other regions of the country as recently as late 2006 until May 2007. Such work included cultivation of biofuels, rubber trees and summer rice paddies, construction of military facilities, roads and bridges, sentry duty and portering, just to name some examples.

In conclusion, the Worker members emphasized that without serious commitment to broad investigation and enforcement powers, including, but not limited to, an ILO Liaison Office with an expanded capacity to conduct nationwide inspection that did not depend entirely on the courage, volition and personal wherewithal of individual complainants, Burma would surely maintain its unconscionable distance from what the Governing Body had called the relevant threshold.

The Government member of Germany, speaking on behalf of the European Union, the candidate countries: Turkey, Croatia and The former Yugoslav Republic of Macedonia; the countries of the Stabilization and Association process and potential candidates: Albania, Bosnia and Herzegovina, Montenegro, Serbia; the European Free Trade Association (EFTA) countries: Iceland and Norway; and members of the European Economic Area, as well as Ukraine, the Republic of Moldova and Switzerland, which aligned themselves with the declaration, welcomed the signature in February 2007 of the Supplementary Understanding on the establishment of a credible and effective complaint mechanism to enable victims of forced labour to seek redress, as well as the fact that in a period of three months a total of 23 complaints had already been received by the Liaison Officer a.i. The European Union expressed its strong support for the Liaison Officer in his request for additional staff in order to deal adequately with the increasing number of complaints as stated in paragraph 8 of the Supplementary Understanding. Although it was too early to make a final assessment, positive signs were acknowledged with regard to the implementation of the complaint mechanism. However, the Burma/Myanmar authorities were strongly encouraged to show good faith and sincerity in fully implementing the Supplementary Understanding in the future so as to make it an actual step towards the ultimate aim of ending forced labour in Burma/Myanmar. This was crucial to accomplishing substantial and permanent improvement in the human rights situation in Burma/Myanmar. It was also hoped that the ASEAN countries would support the Burma/Myanmar authorities' efforts to implement fully the Understanding and thus contribute to the ending of forced labour. The European Union fully supported the conclusions of the Governing Body adopted in March 2007, approving the option of seeking an advisory opinion by the International Court of Justice but deferring this legal option for the time being. It would continue to monitor closely the human rights situation in Burma/Myanmar, in particular the actual progress in the implementation of the Supplementary Understanding.

The Government member of the Philippines acknowledged the importance of the ILO presence in Myanmar and thanked the ILO Liaison Officer a.i., Mr Horsey, for his efforts to assist the authorities in complying with Convention No. 29. Stating that his Government was firmly opposed to the practice of forced labour, he encouraged the Government of Myanmar to exert all efforts to comply with the Convention and eradicate forced labour practices throughout the country.

He welcomed the conclusion, in February of this year, of the Supplementary Understanding between the ILO and the Government of Myanmar, which established the mechanism for handling complaints of forced labour. He also noted the latest developments in Myanmar since March 2007, particularly the progress in the handling of complaints as reported by the ILO Liaison Officer. Such positive developments underscored the importance of dialogue and cooperation between all parties concerned; in this regard, the Governing Body's decision to defer the seeking of an advisory opinion by the International Court Justice was a welcome one. He concluded by expressing full support for Mr Stephen Marshall's appointment to the ILO Liaison Office in Yangon.

The Government member of the United States thanked the Office for its summary of developments since June 2006, and its update of developments since the Governing Body last considered this issue in March 2007.

She noted with interest that the complaint mechanism established under the Supplementary Understanding had been put into practice, and expressed encouragement with the fact that, according to the latest reports, the Liaison Officer a.i. had received 23 complaints. She observed nonetheless that, as relatively few cases had reached a conclusion that the Liaison Officer was able to confirm, it was clearly premature to judge whether the mechanism was producing real and meaningful results.

The process of eliminating forced labour required continuing effort. It required continued, unrestrained access by complainants to the Liaison Officer, proof that complainants were not being subjected to harassment or punishment for their complaints, proof that those who impose forced labour were punished, and proof that the punishments were commensurate with the seriousness of the acts committed. Strengthening the staff of the Liaison Office to deal with the increased workload was also necessary. In this regard, she noted with concern that at the time the Office's report was finalized, the ILO's request for suitable international staff to assist the Liaison Officer had not been acted upon. Hopefully the practices of delay and deception seen too often in the past were not being repeated; the authorities should act expeditiously to facilitate the ILO Liaison Office's staff expansion, in keeping with the commitments made in the Supplementary Understanding.

The developments reviewed within the scope of the Supplementary Understanding were still small and preliminary steps, and the complete elimination of forced labour in Myanmar remained a distant goal. She stated that the steps the authorities needed to take had been specified by the Commission of Inquiry nearly a decade ago and must be implemented; additionally, it was necessary to recognize that the goal of ending forced labour was inextricably bound to progress in allowing the country's people their democratic rights - including freedom for Aung San Suu Kyi and other civil society leaders.

She asserted that the members of the ILO also possessed certain responsibilities, and that the United States, for its part, had taken action by extending for yet another year stiff economic and travel sanctions against the regime. She concluded by thanking the Liaison Officer a.i., Mr Richard Horsey, for his dedicated work to eliminate forced labour over the last five years and welcomed his successor to the Yangon Liaison Office, Mr Stephen Marshall.

The Government member of Japan expressed support for the Supplementary Understanding, which reflected the tireless efforts of both the ILO and the Government of Myanmar to arrive at an agreement. He commended these efforts and took note of the fact that the mechanism established by the Supplementary Understanding was working well. Recalling the predicaments and frustrations of previous years, he stated that the Supplementary Understanding had given rise to new expectations and hopes for better cooperation between the ILO and the Government.

He expressed gratitude for the ILO Liaison Officer a.i. Mr Richard Horsey's service over the past five years and welcomed Mr Stephen Marshall's appointment to the Liaison Office in Yangon. Taking due note of the increased workload the Liaison Office would be expected to assume, he urged the Government to accept the ILO's request to strengthen that office's staff resources.

The conclusion of the Supplementary Understanding was only a beginning, he remarked. The Understanding's true significance hinged upon its successful implementation; the Government was strongly urged to ensure that this would be realized. He stated that the next year would prove critical as a test period and emphasized the importance of keeping a vigilant eye on the manner in which the Government implemented the commitments it had assumed, as well as the extent to which victims of forced labour could, through the services of the ILO Liaison Office, channel complaints and seek remedies free from the threat of retaliatory action.

He noted the positive comments made by the Government, in particular the favourable indications it had expressed with regard to the strengthening of staff resources in the ILO Liaison Office. He concluded by stressing the importance of the spirit of cooperation, without which the elimination of forced labour could not effectively be realized, and offered the assistance of his Government in this regard.

The Government member of Australia thanked the Office for its efforts in engaging with the Government of Myanmar and expressed his appreciation for Mr Horsey's service over the years. He also welcomed the appointment of Mr Marshall as the new Liaison Officer and trusted that all cooperation would be extended to him by Myanmar.

He welcomed the Liaison Officer's most recent assessment, which demonstrated that the complaint mechanism was functioning. It was encouraging to note that several complaints from across the country had been received, and that action had been taken by the authorities in some of these cases. At the same time, he noted with concern that the Liaison Officer had assessed that nine of the cases reported involved situations of forced labour, underscoring once again the persistence of the forced labour problem in Myanmar.

Stressing the importance of the Government's full cooperation with and assistance to the ILO, he welcomed the assurances made by the Deputy Minister of Labour on 8 April 2007 that Myanmar would continue to extend full cooperation in dealing with future complaints. Support was also expressed for the ILO's request for additional staff to its Liaison Office, given the increasing number of complaints received.

He emphasized that the success of the mechanism would largely depend on the confidence that ordinary people - those subject to forced labour - had in it; this confidence would be the result of the actions, including successful prosecutions, taken against those officials responsible for forced labour, regardless of their rank. He called on the Government to fulfil its commitment to give adequate publicity to the Supplementary Understanding in the appropriate languages. He expressed encouragement over the functioning of the mechanism but stressed that this was but part of a broader obligation on Myanmar's part to eradicate the use of forced labour throughout the country, noting that the ultimate goal would only be achievable if the Government fully implemented the recommendations of the Commission of Inquiry. He strongly urged it to do so.

The Government member of India stated that since the Governing Body's last session in March 2007, Myanmar had taken further steps to cooperate with the ILO Liaison Office in Yangon - in accordance with the recommendations of the Report of the Committee on the Application of Standards - by establishing a mechanism to eradicate the practice of forced labour. Nine complaints of forced labour were currently being investigated by the authorities.

Noting further that the Government had agreed to the replacement of the present ILO Liaison Officer by another ILO official, he considered that the Government should be commended for the cooperation it had extended in addressing the practice of forced labour. The ILO was also to be commended for its efforts to assist Myanmar. Recalling that India had been, and continues to remain strongly opposed to forced labour, which was expressly prohibited under its Constitution, he reiterated his Government's support for the developments in eradicating this problem through the joint endeavours of the ILO and the Government of Myanmar.

The Government member of New Zealand thanked the Office for its update on Myanmar's observance of Convention No. 29 and expressed her appreciation for the work undertaken by Mr Horsey. She expressed encouragement over the progress reported, in particular the fact that all concerned parties had expressed initial satisfaction with the start-up phase of the new complaint mechanism - the widespread geographical use of which appeared to be a good indication of national coverage. She congratulated the concerned parties on these results and looked forward to deeper cooperation in the months and years to come, to eliminate forced labour in Myanmar. She encouraged the Government to accept the ILO's request to strengthen staff resources in its Liaison Office, and extended her congratulations to Mr Marshall on his appointment to the Liaison Officer position.

The Government member of Canada thanked the Office for its efforts in addressing the problems of forced labour in Myanmar, commending in particular the work of Mr Horsey. He observed that this week witnessed the 17th anniversary of Myanmar's last democratic elections, which were won in a landslide by Nobel laureate Aung San Suu Kyi's National League for Democracy. Adding that Aung San Suu Kyi remained under house arrest, he maintained that the Government consistently violated the most fundamental human rights of its people, as demonstrated most recently in the May arrest of activists - including noted labour activist Su Su Nway - calling for Suu Kyi's release.

He clarified that speaking of these rights violations was necessary to provide important context to the forced labour issue, towards the elimination of which the recent Supplementary Understanding constituted an important first step. Trusting that the Government would, under the terms of the Understanding, allow the Liaison Office to increase its staff, he expressed encouragement that complaints were being received and investigated, and that successful prosecutions and punishments had followed. As confidence in the new complaint mechanism developed through practice and publicity, the agreement should be extended indefinitely.

These developments notwithstanding, he stressed that the context of continuing violations remarked upon earlier did little to inspire confidence; he urged the ILO to maintain its vigorous efforts while calling upon the Government of Myanmar to move forward and implement the recommendations of the Commission of Inquiry.

The Government member of the Russian Federation affirmed that forced labour was unacceptable, wherever it occurred, and that it should be eliminated in Myanmar promptly and fully. Doing so, he stated, would require the Government's active involvement. In this regard, his Government welcomed the conclusion of the Supplementary Understanding between Myanmar and the ILO, which gave the Liaison Office additional powers to consider complaints of forced labour.

Noting that by all indications the mechanism established was working, he expressed gratitude for the important work undertaken by Mr Horsey. He also commended the fact that in the time since the previous International Labour Conference, Myanmar had ceased prosecutions and released several persons accused of propagating false information on forced labour. As regards the question of seeking an opinion from the International Court of Justice (ICJ), he expressed serious doubts as to the desirability of such a measure. Though an interpretation from the ICJ might be appropriate where there was a divergence of opinion regarding the substance of Convention No. 29, no such divergence existed in the present case, as the Government had admitted to problems in implementing the requirements of the Convention. He therefore considered that his Government could not endorse the seeking of an opinion of a binding nature. In any event, the conclusion of the Supplementary Understanding had rendered the question of an advisory opinion from the ICJ irrelevant.

The Worker member of Singapore noted that the signing of the Supplementary Understanding came about after more serious options had been considered, such as referring the matter to the International Court of Justice. The Understanding was meant to address one very important aspect of the 1997 Commission of Inquiry's recommendations, and the fact that it would not be possible to eradicate forced labour without a complaint mechanism.

The speaker made two observations. First, the number of 23 complaints appeared to be very small compared to the number of forced labour cases reported. Those wishing to make complaints were faced with serious difficulties as they were not always aware that they could do so, and could not easily travel to lodge complaints even if they were aware of such possibility. The ILO Liaison Office was also seriously understaffed and the Government had not responded positively to requests for further resources. Secondly, the small number of 23 complaints gave a very misleading impression of the forced labour situation in the country. The reality was that forced labour continued to be perpetrated with impunity. The speaker referred to cases quoted in the Committee of Experts' report and communications received from the International Trade Union Confederation (ITUC) in 2005 and 2006. The overall picture was grim: forced labour was being used in nearly every state and division of the country, in "development projects", construction or maintenance of infrastructure and in army camps. There was arbitrary use of child labour, including conscription of child soldiers, sexual slavery, human minesweeping and confiscation of land, crops, livestock and money. Since the signing of the Understanding, the Federation of Trade Unions of Burma had recorded 3,405 cases of forced labour in several states and divisions. In Arakan State there was systematic discrimination against ethnic minority communities. Villagers were even forced to provide materials for construction works. Other cases reported recruitment for portering, sentry duty in military camps and use as human shields. There was widespread use of forced labour in remote areas near the border with Bangladesh. There were also new emerging patterns of forced labour taxation related to the implementation of government development projects. Grazing land had also been seized. Up to May 2007, there were reports in northern Karen State of forced labour as part of efforts by the military to strengthen its grip on the area.

In all, she said, it was clear that forced labour was not abating in Myanmar but becoming systematic and widespread. She called on the ILO not to fail in its efforts. Success in the eradication of forced labour in Myanmar should not be measured by the number of complaints received by the Liaison Office.

An observer representing the International Trade Union Confederation (ITUC) spoke of the case of U Saw Tun Nwe, who had been taken away for questioning by the military in February 1997 and reported dead by the BBC Burma service two days later as a result of injuries received while in detention. These injuries were the result of severe beatings and forced labour. The victim, who was 73 years old, was part of a group of 21 people selected for forced labour duties. All were arrested in their homes, interrogated and put into forced labour. Another one of the 23 also died of injuries received while in detention. The first victim, U Saw Tun Nwe, was also the father of the speaker, who felt himself fortunate not to have suffered the same fate. Ten years later, forced labour violations were still taking place in the country. The FTUB, the FTUC, the RGWU and Mon human rights organizations had compiled a joint report on forced labour in 2007, and he appealed to the ILO to forward the appropriate questions to the International Court of Justice so that action could be taken.

The Worker member of France reported on the action taken by the international movement of trade unions to implement the resolution adopted in 2000 by the Conference in the framework of article 33 of the ILO Constitution. The International Trade Union Conference, which was held in Nepal in April 2007, had stipulated specific action intended to implement the ILO decisions concerning Myanmar. Thus, in its final statement, that Conference had expressed its concern in view of the increase in investments in the oil and gas industries and mining activities, the illegal export of timber and the fact that a significant part of the Burmese economy was dominated by enterprises controlled by or associated with the military.

The International Trade Union Conference had decided to focus its campaigns on multinationals operating in the country, in particular large infrastructure projects, such as the Salween dam, financed by the Asian Development Bank, that was also part of the implementation of the resolution of 2000; such as the large-scale investments in the exploitation of oil, minerals and forestry, or gas, particularly the project run by a large French multinational. These investors had to recognize that, in the context of their economic activities in the country, they were benefiting from the infrastructure, particularly the roads, security and services provided by the State possibly through the use of forced labour. The enterprises had to cease their complicity in using these different infrastructures. Furthermore, the increase in exports coming from Burma as a result of the operation of these multinationals directly contributed to the wealth of the regime and the army, the latter being the main perpetrator of forced labour. In many countries, workers and citizens had joined forces and called on their governments to ensure that multinationals implemented the guiding principles established by the OECD on multinationals. At the request of the trade unions, the national focal points in France and the Netherlands issued recommendations aimed at multinational enterprises in their countries, resulting, with respect to the Netherlands, in a change towards a policy discouraging economic links with Burma. In this respect, the limited scope of the common position adopted by the European Union was regrettable. This might be explained by the fact that European multinationals continued to invest and operate in Burma.

The speaker emphasized that the actions undertaken by workers with a view to implementing the decisions taken by the ILO within the framework of article 33 of its Constitution would remain limited as long as the actions of diplomats and the activities of multinationals did not comply with the relevant obligations, namely to reconsider the economic relations they maintain with the Burmese regime and report on them to the ILO.

The Worker member of the Republic of Korea raised the issue of foreign direct investment in Myanmar and the enhanced use of forced labour that it would entail. He mentioned names of certain foreign companies involved.

The Chairperson intervened and reminded the speaker that companies should not be explicitly named.

The Worker members pointed out that the names of the multinationals involved were relevant to the discussion.

The Employer members recalled that the Committee was only discussing Myanmar's obligations under Convention No. 29. Naming companies indiscriminately suggested that they were collaborating in forced labour practices.

The Worker members reminded the Committee that the 2000 International Labour Conference resolution required action by constituents regarding effective compliance with the Commission of Inquiry's recommendations and again submitted that the Worker member of the Republic of Korea's intervention was relevant.

The Worker member of the Republic of Korea, continuing his intervention, claimed that during gas exploration work, numerous reports had been submitted regarding the use of forced labour. A planned 2,380 km pipeline from the Arakan offshore area to Kunming in China would increase human rights abuses including forced labour along the pipeline, as had a previous project. This project, the Yadana pipeline, built between Myanmar and Thailand, had resulted in unprecedented amounts of forced labour and relocation. He called for companies and states involved to carry out an impact assessment on human rights before proceeding with construction of the pipeline. Governments had a responsibility under article 33 of the ILO Constitution to apply the measures recommended in the 2000 resolution.

The Worker member of Japan reported that trade and investment in Myanmar had recorded sharp increases. According to the OECD, in 2005, Myanmar received aid worth US$145 million, up by 17 per cent from the previous year. Until recently, the Government of Japan had been one of the leading donors, but had now in principle suspended aid. The United States had imposed a total ban in 2003.

However, governments had a responsibility to monitor whether aid, even of a humanitarian nature, actually brought benefits to those in need. There were reports that the Programme of Economic Cooperation in the Mekong Delta, supported by the Asian Development Bank, had caused severe effects on Myanmar, especially forced relocations and loss of farm land. New donors were also emerging in the countries that shared borders with Myanmar which had interests in energy resources, border security and transport facilities. The recent trends in terms of official development demonstrated that adherence to the resolution adopted by the 88th International Labour Conference in 2000 calling upon constituents to review their relations with Myanmar, was not being adhered to in the way intended. She urged the governments concerned to respect and apply this document, at the same time, she called on trade unions to remain vigilant regarding the behaviour of governments in their relations with Burma, especially as concerned official development aid.

The Government member of Belarus stated that his Government considered constructive dialogue and cooperation as the best way forward in the elimination of forced labour. The Government of Myanmar and the ILO were making progress in their efforts and there was reason to suppose that the Supplementary Understanding would become effective and provide objective information on the situation of forced labour. He noted that of the 23 complaints made only nine were justified, and welcomed the Myanmar Government's statement regarding effective cooperation. He also welcomed the appointment of the new Liaison Officer and hoped that forced labour would be removed from the agenda during his tenure.

The Government member of China thanked the Office for its efforts with regard to the forced labour situation in Myanmar and welcomed the appointment of the new Liaison Officer. Since the signing of the Supplementary Understanding, Myanmar had made efforts and taken measures to implement the agreement. The complaint mechanism was functioning and the Chinese Government hoped that the process would have the support of the Committee. China saw dialogue and cooperation as an effective and workable approach to enable member States to eradicate forced labour, and the Government of Myanmar had reiterated its commitment to continued cooperation with the ILO to eliminate forced labour. He hoped that the Government would closely cooperate with the ILO to ensure the effective functioning of the complaint mechanism.

The Government member of Cuba, after having stated that he rejected all forms and expressions of forced labour in any part of the world and supported any measure that would be adopted to eliminate it, said that his delegation firmly believed that dialogue and cooperation constituted the appropriate means to solve this problem, rather than the application of coercive measures which, instead of helping to solve the problem, could provoke a new cycle of confrontation to the detriment of the well-being of the people they were meant to protect. He said that his Government appreciated the efforts made by both the Government of Myanmar and the ILO, which had succeeded in creating a mechanism designed to receive and examine the complaints submitted with regard to issues related to forced labour, a mechanism which was currently functioning.

The Government member of the Republic of Korea supported the Supplementary Understanding between the Government of Myanmar and the ILO on a mechanism to deal with complaints of forced labour. He reported that his Government had investigated the allegations made by the Worker member of the Republic of Korea against a Korean enterprise and had concluded that the company had never committed human rights violations or been responsible for wage arrears with respect to Myanmar workers. The company had actually opened an information channel with other foreign companies to prevent human rights infringements.

The Worker member of Germany regretted that workers in Burma did not have the right to establish organizations of their own choosing and that, due to the tolerated practice of forced labour, which was to some extent even promoted by the State, there was no possibility of enforcing trade union rights. She could not see that the Government was doing even the least to elucidate the accusation of alleged high treason against the Secretary of the FTUB, Maung Maung. It appeared that the FTUB Secretary-General was prosecuted because of his trade union activities. She further stated that his trade union activities were considered terrorist activities, as indicated in a recently published article, stating that the Burmese culture was influenced by the international community, which was influenced by the "terrorist organization" FTUB. It stated further that the FTUB reported to the ITUC, which in turn reported to the ILO. She stressed that this was not only libellous with respect to the FTUB and the ITUC, but also with respect to the ILO and its constituents. The regime had also not released Myo Aung Thant, sentenced to 20 years' imprisonment after a secret trial for alleged high treason. On 1 May of this year, six colleagues were arrested after participating in a Labour Day event. Two more trade union coordinators were arrested by military police on their way back from the Thai border, where they had drawn attention to the events of 1 May.

She urged the Burmese Government to release Thurein Aung, Kyaw Kyaw, Wai Lin a.k.a. Wai Aung, Nyi Nyi Zaw, Kyaw Min a.k.a. Wann and Myo Min, whom she named on behalf of all detained colleagues. She issued the same request for Nobel Peace Prize laureate and winner of the free elections in 1990, Aung San Suu Kyi, still kept under house arrest. She asked how much patience people in Burma must exercise until universal human rights would apply to them, how much patience the ILO must exercise until the Burmese military regime implemented Convention No. 87 and forced labour was a thing of the past?

The Government representative indicated that he had listened very carefully to the statements made by the members of the Committee and had noticed that the establishment of the complaint mechanism under the Supplementary Understanding had given rise to mixed reactions. He regretted the scepticism expressed by certain members with regard to the effectiveness of the mechanism in eradicating the practice of forced labour and emphasized his Government's commitment to ensuring that this mechanism would become an effective tool not only for receiving complaints but also punishing those who committed forced labour. If action was taken promptly by the Government to have the complaints settled, the mechanism could act as a strong deterrent. He therefore appealed to the members of the Committee to continue the cooperation with the Government of Myanmar and allow for assistance to be given to it in its endeavours to eradicate the practice of forced labour.

The Worker members expressed frustration at the lack of progress on this case and emphasized the gravity of the issue which gave rise to this special sitting which takes place every year with the objective of seeking, indeed demanding, progress in the implementation of the 2000 resolution and Convention No. 29 in law and in practice. The discussion had shown that forced labour, which was a fundamental violation of human rights, remained an extensive, systematic and nationwide problem. The civilian and military authorities had a duty not to practise forced labour and specific action was required to address this practice especially where it was carried out by the army in border States.

The current complaint mechanism pursuant to the Supplementary Understanding was an important instrument but the Liaison Office needed to be strengthened substantially. Moreover, the complaint mechanism would have minimum effect unless and until there were demonstrable guarantees facilitating full access to it, with protection for the victims who submitted complaints, and until there were substantive changes in the law and the justice process to ensure that those responsible for exacting forced labour were subject to sanction, so as to end the widespread situation of impunity. The Committee of Experts had noted in its 2007 report the concrete and practical steps needed to eradicate forced labour, including the permanent revocation of the policy of prosecuting persons who lodged complaints; the total repeal of the Village and the Towns Acts; the provision of concrete and verifiable information about specific and concrete instructions to civilian and military personnel to eliminate forced labour practices; mass communications to the entire population on the imperative to eliminate forced labour as well as information on the use of the complaints mechanism; and finally, the provision of verifiable evidence about the measures taken to provide an adequate budget allocation for the replacement of forced or unpaid labour.

In conclusion, the Worker members reiterated their view that the possibility of submitting a request to the International Court of Justice for an advisory opinion as to whether the cooperation by the Government of Myanmar and the actual progress made in the implementation of the recommendations of the Commission of Inquiry met the relevant threshold, should remain an option.

The Employer members noted that the Government clearly needed to implement the recommendations of the Commission of Inquiry immediately, and that seven years after the resolution of the International Labour Conference, the Supplementary Understanding was at best a small step which in and of itself would certainly not eradicate forced labour in the country. It was therefore essential that the Village and the Towns Acts be repealed, wide publicity be given to the prohibition of forced labour, and the necessary environment be created so that forced labour be converted to paid labour. No indication was provided during the discussion that the Government intended or was considering such actions. However, until all this was done, the Government would not even come close to meeting its international obligations.

The Worker members pointed out that their consent for the conclusions on this case was based on their understanding that the need for concrete and verifiable measures was absolutely essential. With specific reference to the conclusions of the Governing Body of March 2007, an advisory opinion of the International Court of Justice might be considered.

Not reproduced:

Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29) by Myanmar

Document D.5

Brief summary of developments since June 2006

Latest developments since March 2007

Document D.6

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (no.29)

1. Document GB.297/8/1

2. Document GB.297/8/2

3. Document GB.298/5/1

4. Document GB.298/5/1(Add.)

5. Document GB.298/5/1(Add.2)

6. Document GB.298/5/2

7. Conclusions on item GB.298/5

The Committee examined the observations of the Committee of Experts and the report from the ILO Liaison Officer a.i. in Yangon which included the latest developments in the implementation of the complaint mechanism on forced labour that was established on 26 February 2007. The Committee noted the decisions of the Governing Body of March 2007. It also listened to the statement of the Government representative. The Committee expressed its profound concern at the forced labour situation in Myanmar, as reflected in the observation of the Committee of Experts. It concluded that none of the recommendations of the Commission of Inquiry had yet been implemented, and the imposition of forced labour continued to be widespread, particularly by the army to which specific instructions should be issued. The situation in Kayin (Karen) State and northern Rakhine (Arakan) State was particularly serious. The Committee strongly urged the Government to take all the necessary measures to give effect to the recommendations of the Commission of Inquiry. The Committee took due note of the fact that the complaint mechanism on forced labour continued to function, and that the authorities were investigating the cases referred to them by the Liaison Officer and taking action against those officials found to have illegally imposed forced labour. It was observed, however, that in a number of cases the action taken had been limited to administrative measures rather than the required criminal penalties. It was also observed that the mechanism had to be assessed against the ultimate goal of eliminating forced labour, and it remained to be seen what the impact would be, particularly in the border areas. The Committee underlined the need for the Liaison Officer to have sufficient staff resources available to him as provided for in the Supplementary Understanding and requested by the Governing Body in March 2007. It noted with concern that the Government had not yet agreed to the appointment of an international staff member to assist the Liaison Officer, even though the workload continued to increase, and urged that the necessary cooperation and facilities be given without delay. The Committee requested the Myanmar authorities to give full cooperation to the ILO and extend to the new Liaison Officer all the facilities necessary under the agreement and appropriate under usual diplomatic practice. The Government of Myanmar was requested to provide full information to the Committee of Experts in time for its session later this year, including concrete and verifiable evidence of action taken towards the implementation of the Commission of Inquiry's recommendations. Finally, the Committee welcomed the appointment of Mr Stephen Marshall as the new ILO Liaison Officer in Yangon and expressed its deepest appreciation for the work carried out by the outgoing ILO Liaison Officer a.i., Mr Richard Horsey.

The Worker members pointed out that their consent for the conclusions on this case was based on their understanding that the need for concrete and verifiable measures was absolutely essential. With specific reference to the conclusions of the Governing Body of March 2007, an advisory opinion of the International Court of Justice might be considered.

Not reproduced:

Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29) by Myanmar

Document D.5

Brief summary of developments since June 2006

Latest developments since March 2007

Document D.6

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (no.29)

1. Document GB.297/8/1

2. Document GB.297/8/2

3. Document GB.298/5/1

4. Document GB.298/5/1(Add.)

5. Document GB.298/5/1(Add.2)

6. Document GB.298/5/2

7. Conclusions on item GB.298/5

Individual Case (CAS) - Discussion: 2006, Publication: 95th ILC session (2006)

A. Record of the Discussion in the Committee on the Application of Standards

The Chairperson, in addition to the documentation before the Committee, referred to another recent event that had been notified by the ILO Liaison Officer a.i. The latter had met the Minister of Labour of Myanmar and had recommended: suspending the current policy of prosecuting those who lodged complaints; closing the trials and setting free persons who had lodged complaints; and fulfilling the commitments made to the ILO to establish a credible mechanism to deal with complaints. The Minister had undertaken to submit these recommendations to the highest authorities, but had indicated that he was not in a position to say when any response might come.

A Government representative of Myanmar indicated that he wished to confine his Government's statement to the report of the Committee of Experts, which had identified four areas in which the Myanmar Government should take action to address the issue at hand, namely: issuing specific and concrete instructions to the civilian and military authorities; ensuring that the prohibition of forced labour was given wide publicity; providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and ensuring the enforcement of the prohibition of forced labour.

With regard to the issuance of instructions to the civil ian and military authorities, he stated that the Committee of Experts had acknowledged that such instructions had indeed been issued by the civilian and military authorities. As far as possible, English translations of the texts of these instructions had been supplied to the Committee of Experts. With regard to the instructions and correspondence issued by the Ministry of Defence, he emphasized that not all of these were made available to other ministries and departments of the Government as a matter of principle as they involved the national security interests of the country. Therefore, it was impossible to provide copies or English translations of such correspondence or instructions to a body of an international organization.

Turning to the question of ensuring wide publicity on the prohibition of forced labour, he referred to the fact that in the past the ILO Liaison Officer a.i. had been allowed to attend a workshop in Myeik Township in Tanintharyi Division and another in Kawhmu Township in Yangon Division. His Government would try its best to accommodate the attendance of the ILO Liaison Officer a.i. at any future events if and when they were held.

With regard to providing an adequate budget for the replacement of forced or unpaid labour, he informed the Committee that the allocation of adequate funds had been made in the state budget. The Government would provide the Committee of Experts in due course with the relevant information on the allocation of this budget.

In relation to possible options for a forced labour monitoring mechanism, he recalled that in pursuance of the conclusions of the 294th Session of the Governing Body, his Government had invited an ILO mission to further explore such options. This mission had had extensive discussions with the Government, which had indicated that it was willing to consider Option-I, which was based on the existing framework of the Office of the Liaison Officer a.i. in Yangon. During the mission, the Government had also explained why Option-II as suggested by the ILO was unacceptable to Myanmar. He emphasized once again that his Government was willing to pursue Option-I and that detailed discussions with the Office would follow.

He added that there were still two issues that had to be resolved in a manner acceptable to both sides following the ILO mission to Myanmar. The first was the mandate given by the Governing Body to provide protection to complainants or their representatives. The second was to find an acceptable mechanism to address the allegations of forced labour and further explore modalities for resolving forced labour problems in the country. With regard to the first issue, he indicated that while his Government was willing to accommodate the repeated requests from the ILO not to take action against complainants, the situation on the ground made this difficult. There had been a proliferation of false complaints with ulterior political motives and most of the complaints that had been received so far had the political purpose of tarnishing the image of the Government. Therefore, deterrence was needed to cease the proliferation of false complaints and the Government could not condone such unfounded accusations.

Notwithstanding this, he was pleased to inform the Committee that Myanmar had reconsidered its position on this issue and that there had been positive developments in this respect. He indicated in this regard, that the Minister of Labour had received the ILO Liaison Officer a.i. in Yangon on 26 May 2006, who had requested the Minister to reconsider Myanmar's position on the issue of the prosecution of "false" complainants. He was therefore pleased to announce that the Myanmar authorities would put a moratorium of six months on the prosecution of such complainants on an experimental basis. During this period, as an interim measure, the complaints would be handled by the Director-General of the Labour Department, together with the ILO Liaison Officer a.i. In the meantime, both the ILO and the Government would continue to work out the modalities and the legal framework of Option-I so that a mutually acceptable mechanism could be established. He indicated that this arrangement once again reflected Myanmar's willingness to cooperate with the ILO.

He then reiterated his Government's strong objection to the presence and participation in the deliberations of Maung Maung in this Committee. His Government had already sent a written correspondence in this regard. He wished to take the opportunity to draw the attention of the ILO to the involvement of Maung Maung in terrorist activities in recent years. The Ministry of Home Affairs, in its Notification No. 3/2005 issued on 28 August 2005, had declared the Free Trade Union of Burma (FTUB) an unlawful association under section 15(2) of the Unlawful Associations Act. Maung Maung was the Secretary-General of the FTUB. Moreover, the Ministry of Home Affairs had issued Declaration No. 1/2006 on 12 April 2006, which had declared Maung Maung, Hla Oo and the FTUB to be terrorists based on concrete evidence.

Turning to developments since March 2006, he added that in document D.5, the ILO Liaison Officer a.i. had mentioned that he had heard that one of the three persons in the Aunglan case, namely Aung Than Tun, had been sentenced to two years' imprisonment on 19 May 2006 by the Township Court. However, to the knowledge of his Government, nobody had been sentenced and in the absence of witnesses the court had postponed the hearing of the case until 20 June 2006.

He concluded that, although certain quarters had again brought the Myanmar case under the spotlight and had threatened to take action if the Government did not meet its obligations, his Government would try to do the utmost taking into consideration the reality of the situation in the country and the constraints it was facing. The issue could only be resolved through cooperation and engagement, and not through threats and confrontation.

The Worker members deplored the fact that once again the Conference Committee had to address this extremely serious case, which was all the more serious because it had been going on for over 30 years. In 1997, the Commission of Inquiry had noted that Convention No. 29 was being violated in a generalized and systematic manner, both in law and in practice. It had therefore made the following recommendations: that the legislative texts, particularly the Village Act and Towns Act, be brought into conformity with the Convention; that the author ities, and in particular the military, cease to impose forced or compulsory labour in practice; and that the sanctions provided

for imposing forced or compulsory labour be strictly applied. To ensure the implementation of these recommendations, the Committee of Experts had identified four areas in which the Government needed to take concrete steps to bring an end to the imposition of forced labour in the country. Nevertheless, five years later, in June 2005, the Conference Committee had had to note the persistence of flagrant violations of Convention No. 29 and the systematic failure to give effect to the recommendations. The Committee had therefore asked the Governing Body to once again examine the case, which it had since done on two occasions.

Despite all the measures taken by the ILO, the imposition of forced labour persisted in the country. Consequently, the Committee of Experts had once again had to examine the questions on which it was awaiting a response from the Government. With regard to the amendment of legislative texts, the Government claimed that it had issued several orders declaring the requisition of forced labour illegal. However, the Committee of Experts had still not been able to verify the content of these orders, particularly regarding the types of practices considered to be forced labour. Moreover, the Government had been called upon to ensure that the prohibition of forced labour was widely publicized. Although it had referred to the organization of a number of briefings and workshops, it had not indicated their content. In relation to the provision of adequate resources to replace forced and unpaid labour, the Committee of Experts had reaffirmed that it had no detailed information on the allocation of any budgetary resources. Finally, with regard to the measures to be taken to ensure compliance with the prohibition of forced labour, the Committee of Experts had made several observations. Firstly, the field observation teams and the focal point established by the Office of the Commander-in-Chief of the army lacked independence and credibility. Secondly, of the 46 cases submitted to the Convention No. 29 Implementation Committee in 2004, only five had been identified as really constituting forced labour, none of which involved the army. Thirdly, those who lodged complaints were now being prosecuted, rather than those who imposed forced labour, which had led the ILO Liaison Officer a.i. to cease submitting cases of forced labour to the competent authorities. Finally, the ILO Liaison Officer a.i. had been the victim of threats. The persecution of complainants constituted a flagrant violation of Articles 23 and 25 of Convention No. 29 and was contrary to the obligation to eradicate all forms of forced or compulsory labour set forth in the ILO Declaration of 1998.

The Worker members continued by emphasizing that a civilized world demanded a commitment to shared human values. The members of the United Nations family had been charged with the responsibility for laying down a set of human rights, including labour rights that defined, encouraged and protected that shared human values. When human beings were maltreating and enslaving each other, that was a violation against humanity and was amongst the worst crimes. When that violation was systemic in a context where perpetrators showed no remorse and demonstrated no willingness to change their behaviour, then the world had to act. That was the case of Burma. The Worker members drew attention to the huge body of evidence of new and ongoing cases of forced labour in the country. They wished to update the Committee on the reports received of the use of forced labour in recent months, witnessing some of the most appalling treatment of human beings in this century. They reminded the Committee that it was dealing with human lives affected by the continuing, extensive and widespread practice of forced labour.

They referred to the Committee of Experts' report, which had noted the communication by the ICFTU of August 2005, which included some 1,100 pages of documents from many sources providing evidence of the persistent use of forced labour in nearly every state and division of the country. The Committee of Experts had requested a response from the Government. However, today's statement by the Government representative was absolutely inadequate and suggested a political and public relations response that did not inspire any confidence. The Worker members detailed examples of recent cases of forced or compulsory labour, highlighting that over the last few months army commanders and units had inflicted forced labour on the local people, particularly in the Kayin, Mon and Arakan States. In the Arakan State, examples included: (1) the use of forced labour, extortion and land confiscation for rice paddy cultivation in military and local NaSaKa fields during the rainy season and its impact on the farmers who also had to deal with the cultivation of their own fields; (2) the widespread and constant exaction of forced labour for activities such as brick-making, repairs and the expansion of military camps, road works, bridge building and the construction of model villages in the context of so-called development projects; (3) the construction of new major road links and bridges between military bases or between villages and army camps in Buthidaung and Maungdaw townships, where villages had been forced to contribute materials and labour, and children had been seen crushing stones; (4) reports by villagers that the construction and production of construction materials, both used in construction projects and for sale for the purpose of generating income for the benefit of the military and other authorities, often required more time than compulsory work in brick yards; and (5) the use of forced labour all year round to maintain and repair military camps as well as the prevalence of sentry duty and camp labour. With regard to the use of forced labour in the Kayin (Karen) and Mon States, they mentioned the serious humanitarian concerns related to increased military activity that had resulted in forced portering of military and food supplies, and in forced mine clearances. The Government had expanded its road network in these states, which had been accompanied by the establishment of new army camps and new forced labour for the local villagers. The increase in forced labour had been a direct result of the current military offensive in Karen areas and 14,000 civilians had been internally displaced in the last four months, including members of the local education, health and agricultural unions. The Worker members added that the situation of refugees and internally displaced people was serious and worsening and that, since October 2005,540,000 people had been displaced in the east of the country alone. One of the root causes for such displacement was people fleeing the trauma of forced labour.

Turning to the accusation against the ICFTU and the FTUB, they indicated that these accusations caused the Worker members much distress. They denounced once again the outrageous accusations levelled against the ICFTU by leaders of the regime at a press conference earlier this year, claiming that its recognition of and support for the FTUB meant that it supported a terrorist organization. Representing workers in Burma and seeking to protect and promote their most fundamental rights was a matter of great importance and they took exception to the accusations that those who engaged in valid and important work of representing workers were involved in terrorist acts. They emphasized that their brothers and sisters in the country were not terrorists and that they took great pride in defending workers' rights. Maung Maung was not a terrorist but an activist in the cause of freedom. The same applied to his deputy, who was present in the Committee. They urged the Government to respect and uphold the principles of democracy in the ILO.

They concluded by reiterating that forced and compulsory labour in the country was systemic and widespread. This Committee had called upon the Government to undertake serious actions to eradicate forced labour and the Worker members had offered assistance to see the recommendations of the Commission of Inquiry implemented. However, it was clear that the Government had no intention of doing so and this should be recognized in the conclusions on this case. They hoped that the Government representative would understand that the Worker members somewhat distrusted the offer made in his statement. They wished to see more details on the action taken so as to ensure that these promises would not be broken, as so many others had been in the past. The ILO was for many enslaved workers the only spark of hope. The Conference Committee

should adopt strong conclusions, as should the Selection Committee. They were also looking to the forthcoming meeting of the Economic and Social Council to examine these very serious problems.

The Employer members thanked the Government representative of Myanmar for the information provided. However, they could not fail to notice that he had not been in the room while the Worker members had made their statement, which reflected the lack of seriousness shown by the Government towards the case. The Conference Committee had been examining the present case for several years on the basis of the resolution adopted by the Conference in 2000, and the case would also be discussed by the Selection Committee in a few days' time. What was at issue before the Conference Committee was the implementation by the Government of Convention No. 29 and of the recommendations of the Commission of Inquiry. It had to be noted that there had been a fundamental lack of action by the Government to give effect to the Convention since its ratification by the country in 1955. There was also a fundamental lack of transparency, honesty and effort to adopt new and appropriate legislation. In many respects, the 2006 observation of the Committee of Experts was founded on a myth that the Government had perpetuated for over 50 years. For over half a century, it had misled the world that it would implement Convention No. 29. It was time for this deception to end.

In its 2006 observation, the Committee of Experts had highlighted that the Government, at the 2005 International Labour Conference and at the November 2005 Session of the Governing Body, had expressed its determination and willingness to cooperate with the ILO. The world was tired of waiting. The Employer members concurred with the Committee of Experts that the Government's announcements had to be followed by concrete action to be credible. This would be demonstrated if the Government effectively implemented the Commission of Inquiry's recommendations. This year's findings of the Committee of Experts made it clear that this was still nowhere near being the case and that the small steps taken by the Government were in effect mirages. In terms of bringing the legislative texts into line with the Convention, not much appeared to have changed. The Village and Towns Acts, which conferred broad authority for local authorities to requisition labour, remained unamended. The "instructions" that had been issued by the Government directing public authorities not to exercise their powers under certain provisions of the Acts had been limited in their effect. The legal situation remained unclear and confusing as to whether the "instructions" had the quality of law and thus the same quality as the Acts in the legal hierarchy. It was thus not clear to the authorities whether they should follow the Acts or the "instructions". In addition, the legal situation remained unstable, as the "instructions" could be withdrawn at any time, in which case only the Village and Towns Acts, which contradicted the Convention, were left. Finally, no convincing reasons had been given as to why the provisions of the Village and Towns Acts themselves could not be amended. It was thus essential that the Government as soon as possible revised the Village and Towns Acts in order to bring them into conformity with Convention No. 29.

With regard to the need to give wide publicity to the prohibition of forced labour, the Committee of Experts had received information from the Government about the respective action taken, such as letters sent, briefings and workshops. However, there had not been any information on the contents of these briefings and workshops, which raised the question of the effectiveness of the action taken. Moreover, according to the information that had been provided by the Government, hardly more than 1 per cent of the population had been informed about the prohibition of forced labour. Such small-scale action could hardly been seen as equivalent to "wide publicity". The Employer members considered that the Government could have made use of mass media, such as newspapers and broadcasting.

The Employer members agreed with the Committee of Experts' finding that the information provided by the Government in response to the recommendation of the Commission of Inquiry on the budgeting of adequate means for the replacement of forced labour had not been meaningful.

In relation to the enforcement of the prohibition of forced labour through a monitoring mechanism, the Employer members noted that the Committee of Experts had taken note of the information that had been sent by the Government and the ILO Liaison Officer a.i. in this regard. It appeared from this information that the existing monitoring mechanisms were "not well suited" or lacked independence and credibility. Moreover, the victims of forced labour who complained to the ILO seemed to be systematically prosecuted for allegedly false complaints. The Committee of Experts had rightly called upon the Government to cease this practice. The Government needed to prosecute the perpetrators of forced labour and develop credible, fair and more effective procedures for investigating allegations of forced labour. The Committee of Experts had also requested the Government to work more closely on this with the ILO Liaison Officer a.i. and it had emphasized the need for a facilitator as a credible channel for the treatment of the complaints. The Employer members reaffirmed the need for the ILO supervisory bodies to have at their disposal meaningful, verifiable and reliable information on the action taken by the Government. The Government had to provide such information on its own initiative and without having to be constantly reminded by the ILO supervisory bodies.

The Employer members concluded by emphasizing the key role that the ILO Liaison Officer a.i. played in the country in facilitating contacts and cooperation between the ILO supervisory bodies and the authorities. The Government should not only allow him to deliver his tasks, it should proactively support him and seek his involvement in its own efforts. Instead, there had been various forms of pressure and intimidation, completely contradicting the commitment to cooperation that the Government had pledged on many occasions. There had simply not been any progress. The Employer members deplored the situation and were deeply concerned at the lack of tangible improvement in this extremely serious and worrisome case. An overall appraisal of the case suggested that appropriate actions should be considered under article 33 of the ILO Constitution. It was now time for concrete action. Anything else was a travesty of international justice and the rights of forced labourers in Myanmar. The Government just had to do the right thing: eliminate forced labour.

The Government member of Austria, speaking on behalf of the Government members of the Member States of the European Union, and of Albania, Bosnia and Herzegovina, Bulgaria, Croatia, The former Yugoslav Republic of Macedonia, Iceland, Norway, Romania and Turkey, as well as of the Republic of Moldova, Switzerland and Ukraine, which aligned themselves with his statement, recalled that the extremely serious case of Myanmar had been on the agenda of the Committee of Experts for more than 30 years, and had been criticized and condemned by the Conference Committee, Governing Body and the Conference. This had culminated in the unprecedented and unique application of article 33 of the ILO Constitution by the Governing Body, and had led to the resolution adopted by the Conference in 2000. It was therefore no surprise that the report of the Committee of Experts on Myanmar was comprehensive and detailed, containing a number of strong and clear expectations addressed to the authorities of the country.

He expressed the deep regret of the European Union at the decision by the Burmese Government to extend the house arrest of Aung San Suu Kyi, and deplored the fact that the international appeals, including that of the European Union on 26 May 2006, had gone unheard. This was a further sign that the Government was unwilling to compromise and move towards an all-inclusive democracy. It was in that context that the European Union had reiterated its call on the Government to release Aung San Suu Kyi and all other political prisoners, as well as to engage all ethnic and political forces in the country in genuine dialogue so as to achieve national reconciliation and democracy. In this regard, he highlighted the European Union's most recent declaration on Burma/Myanmar of 26 May, in which it indicated its readiness to help the country so as to achieve democracy and true reconciliation.

He welcomed the recent visit made by the United Nations Under-Secretary-General to Myanmar, during which he had met the most senior leaders of the State Peace and Development Council (SPDC), addressing a wide range of outstanding issues of interest to both the United Nations family and the international community. He reiterated his call on the authorities to cooperate with the United Nations, especially the ILO, and urged them to cease the harassment of politicians and human rights defenders and to lift restrictions on freedom of assembly and speech, including the right to lodge complaints regarding forced labour without fear of retaliation and prosecution. He expressed the view that the debate on Burma/Myanmar was not yet complete. He therefore reiterated the European Union's full support for the ILO Liaison Officer a.i. in fulfilling his duties in an extremely delicate environment, and looked forward to further discussion of the issue in the Selection Committee later in the month so as to decide on possible further action to be taken by the ILO in order to secure compliance by Myanmar with the recommendations of the Commission of Inquiry, and to ensure that no repressive action could be taken against complainants and their representatives.

The Governmcnt member of Australia cautiously acknowledged the announcement by the Government representative of a moratorium on the prosecution of complainants, but emphasized that this should be a permanent measure. He hoped to be provided with more information, on its operation in practice. He expressed his Government's continued concern about the situation in Myanmar. The prospects for change remained bleak, with no movement by the Myanmar regime to address the need for genuine political reform, to respect human rights or to arrest the continued economic decline. He also expressed concern regarding the continued detention of all political prisoners. He strongly urged the Government to promptly address the issue of forced labour by complying with the recommendations of the ILO Commission of Inquiry, and looked forward to further discussion of the two options for further action in the Selection Committee later in the month.

The Government member of China stated that forced labour was a violation of fundamental human rights and therefore had to be eradicated, which was the objective of Convention No. 29, adopted by the ILO in 1930. The experiences of the ILO since the adoption of the Convention showed that a global alliance needed to be forged to eradicate forced labour, as reported the previous year in the Director-General's Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work. He stated that the ILO had been assisting the Government of Myanmar to eradicate forced labour, based on the spirit of dialogue and cooperation. The Government had made progress, although the speed of that progress might not be sufficient from the viewpoint of the international community. He expressed his Government's view that the Government of Myanmar was in general terms moving in the right direction. He regretted that the previous year's conclusion of the Conference Committee had had a negative impact on cooperation between the ILO and the Government, and he therefore hoped that cooperation would be strengthened.

He said that Myanmar was suffering from armed conflicts among ethnic groups in its border areas, declining national economic development and a legislative system that was incomplete, which were the major reasons for forced labour. The international community had to help on these matters. He said that currently Myanmar was moving towards national development and was in the process of formulating a new Constitution, with a view to promoting peace and democracy. He expressed the opinion that the international community should encourage and assist the country, rather than condemning or sanctioning it, which would generate better results. He expressed the hope that the Committee and the Government would engage in sincere dialogue, which would bring them onto the path of cooperation. It was only through dialogue and cooperation, and by taking into account the views of all concerned, that the international community would be able to achieve progress in the case of Myanmar.

The Government member of the United States noted the remarks and proposals made by the Government representative and awaited confirmation of the progress that had been announced. She said that it was with great sadness and profound frustration that it had to be noted once again that there had been no improvement in the Burmese regime's effort to address the issue of forced labour. The Government was not meeting its international commitments, and in the year that had passed since the last special sitting of the Committee, the pattern of non-compliance had continued.

The Committee of Experts, in its most recent observation, noted that it had been commenting on this extremely serious case for over 30 years. In addition, since the early 1990s, the ILO had examined the issue of forced labour in Burma in every other supervisory mechanism available to the Organization: an article 24 representation examined by the Governing Body; an article 26 complaint resulting in a Commission of Inquiry; and, most recently, unprecedented measures under article 33 of the Constitution. The conclusions at every step of the supervisory process had been consistent. There was no doubt that forced labour existed in Burma and that the Government had failed to take meaningful steps to address the problem. In its latest observation, the Committee of Experts had laid out with absolute clarity what the regime had to do to implement the recommendations of the Commission of Inquiry and to comply with its obligations under Convention No. 29. First, bring all of the relevant legislative texts, especially the Village Act and the Towns Act, into line with the Convention. This had long been promised and still not achieved. Second, ensure that the prohibition of forced labour was given wide publicity. As the Committee had noted, this was not a difficult exercise and could be done immediately. Third, provide funds so that paid labour could replace forced or unpaid labour. This was a step that would show a genuine commitment to ending forced labour. And, fourth, ensure that forced labour monitoring machinery was enforced. It was absolutely necessary that, in the words of the Committee of Experts, the Government develop "credible, fair and more effective procedures for investigating allegations of forced labour, in particular those cases involving the army".

She emphasized that the ILO had laid out a clear set of directions for rectifying the problem of forced labour in the country, but that the Government had failed to address concretely any of the ILO's recommendations. The ILO had urged the Government to prosecute the perpetrators of forced labour, instead of which the complainants and the victims of forced labour were being prosecuted. The ILO had offered to assist and work with the Government in a supportive manner so that the problems could be addressed systematically and cooperatively, but the offer had never been taken up. The Government had sometimes expressed a commitment to eliminate forced labour and to cooperate with the ILO. It had sometimes denied the existence of forced labour. And at other times it had threatened to withdraw from the ILO. But at all times, the practice of forced labour had continued unabated and with impunity. Equally troubling was the fact that the regime had yet to recognize the results of the 1990 legislative elections, overwhelmingly won by the National League for Democracy and other opposition parties. And Aung San Suu Kyi's detention had recently been extended. Notwithstanding the positive indications of the Government representative, in the absence of concrete and verifiable steps to address this long-standing and deplorable situation, there was no choice but to consider other means in the ILO, in other international organizations and with other actors to bring about, once and for all, an end to forced labour in the country and ensure its full compliance with Convention No. 29.

The Government member of New Zealand expressed her thanks and appreciation to the International Labour Office for its update on the forced labour situation in Myanmar, and for the Office's continued efforts to achieve progress on that issue. She emphasized the importance attached by her Government to the operation of an ILO office in Myanmar and the need for dialogue between the ILO and the Government of Myanmar. The situation in Myanmar was not new to the Conference. For many decades the ILO had been calling on Myanmar to eliminate the practice of forced labour, but had seen no response from the Government to that call, nor had it implemented the recommendations of the ILO Commission of Inquiry. It was for these reasons that she supported the placing of the above issue on the agenda of the Conference so as to achieve a more effective application of the measures contained in the resolution on Myanmar adopted by the Conference in 2000.

She expressed great disappointment at the current situation in Myanmar, in which the efforts of the ILO to engage in dialogue in good faith had been met with intransigence, despite the expressions of commitment by the Government. Myanmar's refusal to accept the principle that people who lodged complaints should not be subjected to legal or other retributive action was directly inconsistent with Myanmar's legal obligations under Convention No. 29. This principle was fundamental for future cooperation with the ILO. She urged the Government to adhere to its international obligations and strongly supported the call made by the ILO that the Government cease prosecuting victims of forced labour or their representatives, and instead take action to prosecute the perpetrators of forced labour. She once again called on the Government to respect international human rights, engage in effective dialogue with the ILO and the international community and comply with its obligations under Convention No. 29, so as to ensure that the people of Myanmar no longer suffered the injustice of forced labour.

The Government member of Canada said that his country had made clear its position on Burma over the past years. It continued to be deeply disappointed by the absence of any significant improvements with regard to forced labour, and in particular the Government's failure to implement the measures recommended by the Commission of Inquiry and the High-Level Team. His country had watched with growing unease the unfavourable developments that had been unfolding in relation to forced labour. These were part and parcel of a long-standing and comprehensive policy of the authorities, which undermined the basic principles of human rights. Nobel Laureate Aung San Suu Kyi had once again had her house arrest extended. She stood for and with the many unfortunate and nameless Burmese citizens, including those pressed into forced labour. He was also distressed by the army's military offensive in the east of the country, which had caused such loss of life, suffering and dislocation among innocent civilians, as well as a great increase in forced labour, as reported by the Worker members.

He called on the Government: to release Aung San Suu Kyi and other imprisoned leaders of the democratic movement immediately and unconditionally, and to cease armed hostilities against innocent civilians; to take immediate and effective measures to eliminate forced labour in accordance with the ILO's recommendations; to prosecute those who exacted forced labour; to cease prosecuting persons who reported cases of forced labour or had contact with the ILO Liaison Officer a.i.; to demonstrate sincerity in the dialogue with the ILO and take advantage, for example, of the informal mediation services offered by the representative of the Centre for Humanitarian Dialogue; and to implement the Joint Plan of Action, as agreed upon in May 2003 by the ILO and the Government. Finally, he thanked the ILO Liaison Officer a.i. for his valuable work in a difficult and delicate situation.

The Government member of the Russian Federation reaffirmed his country's position that forced labour was unacceptable and the importance of eradicating forced labour in Myanmar as rapidly and completely as possible. He therefore welcomed the consensus within the ILO on the issue as well as the commitment to this aim confirmed by the Government. He commended the Office on the considerable efforts which had been made since the previous Conference to resolve the problem. He paid tribute to the volume of work undertaken by the Office which, although working in rather difficult circumstances, had maintained the necessary level of assistance. He agreed with the point of view expressed in the Office documents that progress could only be achieved through the cooperation of the authorities. He therefore supported the proposal to strengthen dialogue. The proposals made by the Government representative merited very careful consideration, as they might give fresh impetus to the dialogue. He called upon the Government to take further steps in cooperation with the ILO with a view to eradicating forced labour and hoped that a mutually acceptable mechanism would be established with a view to resolving the problem.

The Government member of Japan stated that the case of Myanmar was at an important and critical stage. There had been hope ten days before the session of the Conference Committee when the Government of Myanmar had received on 18 May the visit of the Under-Secretary-General of the United Nations for Political Affairs. This optimism, however, had been shattered when the Government had announced the extension of the house arrest of Aung San Suu Kyi. While recognizing that this house arrest did not fall within the mandate of the ILO, his Government considered it unacceptable. The situation was therefore changing rapidly. He welcomed the statement by the Government representative that the Government was ready to consider Option-I, i.e. keeping the existing office of the ILO Liaison Officer in Myanmar, as well as the proposal to place a moratorium for six months on the prosecution of those who submitted complaints of forced labour. His Government appreciated these developments as a positive sign of concrete action.

He suggested that the Government should inform the people of the country of the information and opinions expressed by the members of the Committee. He also proposed two types of action for the Government. First, concrete action should be initiated by announcing the proposals made by the Government representative. Second, the Government should consider maximizing and expanding the measures proposed by the Government representative. He expressed the hope that Myanmar would understand that the opinions expressed were not only those of the International Labour Office, but of the majority of the international community. Although sympathetic words might sound nice, his Government had chosen these straightforward expressions and suggestions as a sign of its true friendship with Myanmar.

The Worker member of Germany said that, as the Worker spokesperson on the Committee on Freedom of Association, she wished to comment on the alarming case of forced labour in Burma and express her great concern at the manner in which human rights were flouted and freedom of association violated. She recalled that the country had ratified Convention No. 87. In this context, the unscrupulous violations in the country of the freedom of workers and of human rights were all the more alarming in view of the country's obligation to comply with the right to organize and collective bargaining. The blatant violations of the right to organize and freedom of association in the country were very clearly linked to the existence of forced labour and the pressure placed by the Government on trade unions. A large section of the population feared to exercise their rights. The Committee on Freedom of Association was currently examining cases brought by the ICFTU involving serious violations of the right of freedom of association, as the military and state authorities denied the fundamental freedoms of the population.

She emphasized that there was not a single legally registered workers' organization in the country. The FTUB could not work openly and its Secretary-General was harassed by criminal prosecution. Trade union leaders were subjected to threats, torture and imprisonment. Seafarers who denounced their working conditions were subject to sanctions, which included the loss of their jobs and being placed on blacklists. In this context, she deplored the still unexplained death of Saw Mya Than, of the FTUB and the Catholic Education Workers Union, and the fact that Myo Auny Than had not yet been released from his sentence to 20 years' imprisonment. The sanctions that were imposed on workers' leaders were so severe as to greatly restrict trade union activities. The history of general violations of workers' and human rights had been going on for a very long time, despite the severe pressure exerted by the international community, including the ILO. Despite the claims of the Government representative, there was no clear will to eradicate forced labour in the country. Moreover, she totally refuted the accusation that Maung Maung was a terrorist and said that he was wrongly subjected to criminal prosecution. She added that Maung Maung was not personally present in the Committee, but was represented by his deputy.

She concluded that, for as long as the military regime tolerated and actively encouraged violations of fundamental workers' and human rights, the ILO and the international community would have to maintain its pressure on the country. She therefore called on the regime to finally take effective action and she urged employers in all member States of the ILO to impose the necessary effective sanctions to bring an end to forced labour in Myanmar.

The Worker member of the United States emphasized that trade unions could and did play a positive role in bringing economic, trade and other pressure to bear on the military regime in Burma, in accordance with the ILO resolution. In this respect, trade unions continued to push hard for sanctions where they did not already exist and for their continuation where they were already in place. They pushed for the prohibition of imports and a curb on investment in the country, which was a critical initiative to foster the meaningful development of the country and improve the lives of its workers through, among other measures, the elimination of forced labour. The role of his own and other governments was essential to the success of these efforts. Trade unions also continued to call on governments to pressurize the military regime through the WTO by calling for a ban on imports from and exports to the country under article 20 of the GATT, which provided for a viable and proper means for exerting pressure and should be pursued with urgency and rigour. Finally, trade unions continued to pressurize their governments and the members of the UN Security Council to place the issue of Burma on the agenda of the Security Council. The ICFTU had requested its affiliate organizations, particularly those in countries that were members of the UN Security Council, to pursue this action and he gave thanks to those affiliated organizations which had done so, particularly in Argentina, Brazil, Italy, the Russian Federation and the United States. Some of their efforts had achieved positive results.

The Worker member of Japan said that the ILO had made great efforts to eliminate forced labour in Burma, including the organization of a High-Level Team, the establishment of the Liaison Office and the setting up of a Convention No. 29 Implementation Committee. He therefore expressed deep concern that there had been no progress or improvement in the situation of forced labour in the country despite the ILC resolution of 2000. He was also particularly concerned that the Government refused to enter into dialogue with the international community. As he had indicated previously on several occasions, a few countries and certain multinational companies had increased their direct investment in the energy sector in the country, which helped the military regime to maintain the forced labour. According to the Economist Intelligence Unit in 2005, the amount of foreign direct investment in the country's oil and gas sector had increased threefold in one year. The main source of investment in the country was China, which accounted for some 89 per cent of total FDI in those sectors, amounting to a tenfold increase between 2003 and 2005. The next biggest investor was Thailand, which had recently increased its role as an investor in the country and exerted a pervasive influence on the military regime. The previous year, Thailand had signed a project for the construction of four large dams, for which technical assistance and feasibility studies had been conducted in advance by certain Japanese power companies. The dams were located in a region populated by three of the largest ethnic groups in the country, mainly the Karen, Karenni and Shan, which had greatly suffered in the past during the construction of infrastructure projects. There was great concern that they would do so again on this occasion. The military regime had been waging war for many years against the ethnic peoples living in those areas, resulting in massive refugee flows, hundreds of thousands of internally displaced persons and countless cases of torture, rape and murder. Such infrastructure development always appeared to go hand-in-hand with the massive use of forced labour.

Referring to the call made in the 2000 resolution for ILO member States to review their relations with the Government and not to do anything that might contribute to the continuation of forced labour practices, he emphasized that the resolution should be respected by all ILO member States and international financial institutions, such as the Asian Development Bank (ADB), which was giving technical assistance for the Greater Meekong Sub-region project. While FDI which fully respected workers' rights could help open societies to promote development, this was not so in the present case. The profits from FDI were not redistributed among workers, but served to support the Government and its arrogant attitude towards its people and international institutions. In such an unchanged situation, investment and technical assistance, including feasibility studies, which might indirectly encourage forced labour should be ceased immediately. He therefore urged the Government to resume dialogue with the international community and create credible mechanisms to put a stop to forced labour.

The Worker member of the Republic of Korea expressed her concern about the issue of forced labour in Myanmar. Korean trade unions were very much concerned about the situation of Burma because two Korean corporations were involved in gas development projects in Burma. Daewoo International was the main operator of the Shwe gas project. According to Earth Rights International, in Burma the major development projects were directed by the ruling junta and overseen by the military. The Shwe gas project would very likely involve environmental degradation, as well as human rights violations such as land confiscation, forced labour on project infrastructure, and forced portering for the military. In order to address the importance of the situation, the Federation of Korean Trade Unions (FKTU) together with NGOs staged a protest rally in front of Daewoo International last year and issued joint statements twice. In addition to that, the FKTU sent an official letter to the Ministry of Labour as well as the Ministry of Foreign Affairs and Trade. In the statements and in the protest letter, the FKTU demanded that Daewoo International and KOGAS immediately take measures to prevent potential violations of human rights, particularly labour rights. FKTU also called upon the Government of the Republic of Korea to reconsider its relations with the Burmese Government and to take all necessary measures to comply with the 2000 resolution of the ILO regarding Myanmar. In addition, FKTU has demanded that the Government of the Republic of Korea and the two Korean corporations release all the relevant information about the gas project and comply with the principles and standards of the international community.

The Worker member of Italy pointed out that previous Worker members stressed that the situation after the last Conference and the November and March Governing Body meetings had worsened. In November 2005, the Governing Body had requested the Government to take advantage of the time available before March 2006 to resume effective dialogue with the Office. Unfortunately, this appeal was not heard. The deteriorating political, social and economic situation and the continuous use of forced labour in Myanmar was taken in due consideration after the 2005 session of that Conference, as well as by other international bodies which underlined in various statements the lack of willingness by the Government to initiate a serious democratization process to bring to an end the use of forced labour and the violations of fundamental human and workers' rights in the country. She made the following points: in August 2005 the Global Fund, under HIV/AIDS, was obliged to terminate grants to Myanmar due to government restrictions that made implementation impossible. Other organizations had to take the same decision, and mentioned the important report and the call launched in September 2005 by Nobel Peace Prize winner, Desmond Tutu, and by the former President of the Czech Republic, Vaclav Havel, requesting an urgent and new diplomatic initiative at the United Nations Security Council. These were determining factors for the Security Council to put Myanmar on its agenda. Among them were forced relocations, forced labour and forced recruitment of child soldiers in a number much higher than in any other country. The Tutu report clearly stated that Myanmar's internal situation was a threat to the stability of the entire region and to the international community, which left open the possibility for the intervention of the Security Council under Chapter VII of the United Nations Charter.

The ECOSOC had decided, after a request from the ILO Director-General, to reactivate its consideration of the item concerning forced labour and to discuss this matter during its session on 26 July 2006. On 16 December 2005, the United Nations Security Council had held a briefing on the situation in Myanmar, which included the situation on forced labour. A second discussion had taken place just a few days before the present session of the Conference. The last report of the United Nations Special Rapporteur on Human Rights underlined the widespread and systematic forced labour practices and forced recruitment by state actors, including allegations of child labour. The report concluded that despite indications from the Government that it was willing to address these problems, the Special Rapporteur was not authorized to visit the country, and regretted that all such willingness appeared to have disappeared and that recommendations from the United Nations Secretary-General had not been implemented. The Special Rapporteur had issued a statement on the situation of human rights in Myanmar focusing on political prisoners and their treatment, which revealed much about the human rights situation and lack of progress towards democracy. He declared that it was time for the international community to urge the establishment of an independent inquiry into the rapidly escalating number of deaths of political prisoners, that should lead to accountability to those responsible.

In March 2006, the International Committee of the Red Cross (ICRC) decided to drastically reduce its activities due to lack of willingness of the Government to cooperate. The ICRC was no longer able to visit any political prisoners including those detained for complaining about forced labour or for trade union activities. From 18 to 20 May 2006, the United Nations Under-Secretary-General visited the country under the General-Secretary's mandate to seek a fruitful dialogue with the Government. The speaker expressed deep concern for the lack of success of such high-level talks. In fact, despite the United Nations representative's meeting with Aung San Suu Kyi, the Government confirmed her house arrest for another year. But even the release of the NLD leader, if not accompanied by concrete reforms and actions such as the halting of prosecutions against forced labour complainants and the possibility for trade unions and NLD to operate, would be just another way to avoid international action. On 26 May 2006, the Presidency of the European Union expressed deep concern for the Government stepping up pressure on ethnic groups. In a further statement, Austria, on behalf of the EU, condemned the decision by the SPDC to extend Ms. Aung San Suu Kyi house arrest.

Considering the constant unwillingness of the Government to go beyond promises and declarations to adopt relevant measures to eliminate forced labour, and also considering the attitude of many governments and multinationals, despite the Director-General's appeal, to revise relations with Burma, she urged governments, regional financial organizations and institutions, such as the EU, to address in a wider and consistent way the issue of foreign direct investment. The proliferation of EPZs now reached 19 in Myanmar, with 8,000 private industries, with a new zone being created to absorb the inflow of FDI. She said that the Committee's conclusions should reiterate the request to the Director-General to call on governments, employers and international organizations to revise their behaviour, including FDI, thus avoiding doing business with state-or military-owned enterprises, urging at national levels that monitoring and customs control systems should be set up with ILO constituents' participation. This would enable governments to take the initiative towards those companies which continued to violate the decisions taken at the ILO. She reiterated her request that the Conference mandate the Officers of the Governing Body to address the next ECOSOC session. In light of the lack of consistent and concrete commitment from the Government to eliminate forced labour, it was time for the ILO to refer the matter formally to the UN Security Council and the International Court of Justice for an urgent advisory opinion. She repeated that the use of forced labour, as underlined by the Commission of Inquiry, if committed in a widespread or systematic manner, was also to be considered as a crime against humanity and should be treated consequently.

An observer representing the International Confederation of Free Trade Unions (ICFTU), member of the Federation of Trade Unions, Burma (FTUB), recalled that the FTUB has been presenting, through the ICFTU, during many years, a huge number of cases of forced labour and recently a further 96 cases of forced labour committed by the regime in the past year (47 cases in the Chin ethnic area, 44 cases in the Rakhine ethnic area and five cases in lower Burma). These cases were quite similar to those presented every other year since the regime issued the Order No. 1/99 of 14 May 1999. In many cases there had been forced labour in the Rakhine and Chin States. While the Government promised the international community that they had committed to stopping the forced labour, in reality they continued to create a state of fear for the people, particularly for those who provided information on forced labour to the ILO. Further, a harsh repression continued against the workers connected to the FTUB and its leaders, such as U Myo Aung Thant. He was arrested in June 1989 and sentenced to life imprisonment and was now in jail since 17 years. When arrested, U Myo Aung Thant was subjected to torture during interrogation and he had no access to any independent counsel or to due process. Currently, he was held in solitary confinement in dark cells in Myikyinar prison.

In a press conference held on 28 August 2005, the regime indicated that they had arrested ten people because of contact with FTUB. Some of them were allegedly sentenced to between seven and 27 years' imprisonment in November 2005. Among them were: U Thein Lwin Oo, U Win Myint (a) U Kyaw Aung, U Myint Lwin, U Hla Myint Than, U Wai Lin, U Yae Myint, U Aung Myint Thein, Daw Yin Kyi, Daw Aye Chan and Daw Aye Thi Khain. U Aye Myint, a lawyer, who had been previously sentenced to death for high treason on the basis of alleged contacts with the ILO, but released from jail in January 2005, was re-arrested in August 2005 and sentenced to seven years' imprisonment. U Zaw Htay, U Thein Zan and U Aung Than Tun were arrested on the basis of the charges related to the death of a villager in 2004 which allegedly occurred during forced labour. These three individuals assisted the family of the deceased to report the matter to the ILO. In April 2006 the regime made further accusations against FTUB and its General-Secretary, Mr. Maung Maung. As a result, any person in Burma who would like to contact the FTUB would be severely punished. If there was a strong commitment by the regime to stop forced labour, it should allow the people to freely give information regarding forced labour to the ILO. As a matter of common sense and experience, the effective elimination of forced labour in Burma could not be achieved without the cooperation of the authorities. However, the regime was not truly committed. At the same time the ILO had always been consistent in its willingness to cooperate. A recent briefing at the United Nations Security Council suggested that it was now time to act. Nonetheless, the regime refused to cooperate and the options which would be presented to the Selection Committee needed to be adopted and vigorously pushed forward. It was hoped that the Worker, Employer and Government representatives would continue to work together with a view to ending these most flagrant and continuing violations, for which the people of Myanmar would be grateful to the ILO.

An observer representing the World Organization against Torture (OMCT) recalled that forced labour was, in itself, always cruel, inhuman and degrading treatment and could be considered as an act of torture per se. As the reports before the Committee attested, in Burma, forced labour was almost always also accompanied by other acts of torture and ill-treatment. Forced displacement, rape and sexual exploitation, denial of food and medical attention and the exploitation of child labour were all part of the situation in Burma today. Resistance to forced labour led to an increase in ill-treatment, detentions and extrajudicial executions. The OMCT was particul arly concerned about the numerous reports of abuse of women and children and the forced exile of men, leaving women and children to fend for themselves in a very hostile environment. Forced labour in Burma was increasing. The Government's decision to force farmers to plant physic nuts from which a substitute for diesel fuel was extracted had already caused new hardships to the population forced to work in connection with these projects. Further, the increase in construction activities had resulted in a growth in the use of forced labour in brick-making, road and bridge construction, construction at military facilities and on other projects. This took place alongside the usual forced labour of sentry duty, forced transport of goods and the forced supply of rice and other foodstuffs.

Forced labour was not confined to Burma itself. Poverty and the attending violence too often spread to involve ever wider spheres. In Burma, one could witness a serious increase in the vulnerability of the poor. Increased forced labour, demands to supply food and building materials without payment and food shortages were resulting in cross-border movements to Bangladesh which might be faced with the need to cope with a significant number of starving refugees this year. According to the UNHCR, the current offensive against the Karen had already led to the influx of more than 2,000 refugees to Thailand. This could lead to tension in Bangladesh and Thailand and destabilization to the border region. Forced labour, and the other many violations of human rights in Burma, had been on the international agenda for far too long. Last year the United Nations Security Council had taken a welcomed step forward, but much more needed to be done. There were many good recommendations contained in the reports before the Committee. These were addressed to governments, trade unions, employers, the United Nations Security Council, the Burmese authorities, NGOs and international organizations. The speaker urged this Committee to add its voice to the call for action to end forced labour in Burma by deciding on concrete action.

The Government member of Cuba noted the announcement made by the Government of Myanmar on their projected moratorium and other concrete measures that would permit collaboration between the Government and the ILO to continue. He hoped that after the adoption of these measures it would be possible to renew this cooperation and move forward towards an improved dialogue and understanding. He called upon all parties concerned to make the necessary efforts not to move away from the application of international labour standards.

The Government representative indicated that his delegation noted the statements made during the discussion. Many of the issues raised went beyond the mandate of the Committee, which was not the appropriate forum to deal with these matters. The Government of Myanmar had expressed itself already on these issues and would do so again if the need arose at the appropriate forum. The Government representative assured the Committee that his Government would cooperate to the full extent possible with the Committee on issues under its purview. He recalled the statements of the Government members of Australia and Japan and others and indicated that the Government of Myanmar would give due consideration to their goodwill.

The Employer members stated that the discussion and the facts of this case were a devastating indictment of the Government's failure to meet its obligations and to abolish forced labour. After half a century, the Government was still unable to indicate to the Committee a sustainable strategy for the elimination of forced labour. Further the Government continued to believe that a few small steps would be sufficient to produce progress. However, it was clear that there was no political will nor commitment to eliminate forced labour. It was difficult to understand why the Government was driving the international community to consider stronger and extraordinary measures that would further marginalize the country. The Government failed to understand that the well-being of its citizens and economy depended on the rest of the world. The Employer members renewed their plea to the Government to eliminate forced labour and to fully comply with the ILO's recommendations.

The Worker members found it difficult to reconcile the Government of Myanmar's declared desire for dialogue with the ostentatious departure of the Government representative from the room at the very moment when the Worker members began their interventions. As to the facts, the Worker members noted that the Committee of Experts had established that recourse to forced labour, principally by the army, was still a widespread phenomenon and that those who reported this situation were systematically prosecuted. The Worker members most of all noted that the four main recommendations of the Commission of Inquiry had still to be implemented, and they appealed to the Government to: demonstrate without further delay its willingness to put an end to forced labour; stop prosecuting those who made complaints about forced labour; free those who had been imprisoned for this reason; end the house arrest of Aung San Suu Kyi; and agree with the ILO on an effective procedure to halt the use of forced labour, including by the army. The Worker members declared that if, by 13 June 2006, the Government had not demonstrated by tangible and concrete actions its sincere intent to put an end to the practice of forced labour in Myanmar, they would request the Committee to apply the Conference proposals in order to introduce at international level the measures foreseen regarding the abovementioned suspension of all imports, exports, loans, credits, joint ventures and other international projects relating to Myanmar. The Workers members requested that the conclusions of the present Committee be brought to the attention of other international bodies according to the usual procedure and that the ILO submit the issue to ECOSOC at that body's next session.

The Committee had before it the observation of the Committee of Experts and a report from the Office on the latest developments as reported by the ILO's Acting Liaison Officer, whose action and dedication received full support. It also listened to the statement of the Government representative, Ambassador Nyunt Maung Shein. It was noted, however, that he was absent from the room during the comments of the Worker spokesperson.

As regards the observation of the Committee of Experts, the Committee noted its profound concern that the recommendations of the Commission of Inquiry had still not been implemented, and deplored the fact that forced labour continued to be widespread, particularly by the army. This was underlined by current reports of extensive forced labour being used in the context of increased military activity leading to significant internal displacement in Kayin (Karen) State. The situation in the Northern Rakhine (Arakan) State remained very serious.

The Committee recalled that, as a result of concerns expressed both in the Governing Body and in the present Committee, the matter was, for the first time since 2000, on the agenda of the Conference as such. The Committee concluded that the inclusion of such an agenda item was more than justified. There would thus be an opportunity for the Conference to fully consider what steps the ILO should now take. The Committee's conclusions would therefore address the question of Myanmar's compliance with its obligations.

The Committee underlined that it was now eight years since the Commission of Inquiry had issued its report and recommendations. While a few interventions claimed that Myanmar was making some moves in the right direction, however slowly, none of these recommendations had so far been implemented by Myanmar. Indeed, instead of progress in the elimination of forced labour and action against those responsible, people were liable to be prosecuted and imprisoned for complaining about forced labour, with the result that victims were being doubly victimized. The policy of prosecuting complainants was incompatible with Articles 23 and 25 of Convention No. 29, and Myanmar could not claim to be committed to the elimination of forced labour or to cooperation with the ILO while it continued to pursue such a policy.

In this context, the Committee noted the comments of the Ambassador of Myanmar that his Government was willing to consider Option-I but rejected Option-II. He stated that the Myanmar authorities were ready to put a six-month moratorium on prosecutions of complainants. The Committee underlined, however, that although this may sound positive, it was late and limited. Words had to be urgently confirmed and completed by deeds in all relevant matters, in particular the acquittal and release of persons who had already been prosecuted (in particular, Su Su Nwe and Aye Myint) and the cessation of prosecutions currently under way. Such action was particularly important as the Conference was to discuss further action to be taken by the ILO, and other organizations including ECOSOC, and that the decisions of the Conference should be based on credible information and commitments confirmed at the highest levels as to the Government's intentions. The authorities now need to immediately enter into discussions with the ILO, with a view to establishing as soon as possible a credible mechanism for dealing with complaints of forced labour.

It would be very important that all the deliberations of the Conference on this matter would be brought to the attention of ECOSOC and other organizations concerned as soon as possible. The Government of Myanmar was also requested to provide a full report to the Committee of Experts on the Application of Conventions and Recommendations in time f or its session later this year.

Not reproduced:

Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29) by Myanmar

Document D.5

Brief summary of developments since June 2005

Latest developments since March 2006

Document D.6

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (no.29)

1. Document GB.294/6/1

2. Document GB.294/6/1(Add.)

3. Document GB.294/6/2

4. Document GB.294/6/2(Add.)

5. Document GB.295/7 and conclusions on document GB.295/7

Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

A. Record of the Discussion in the Committee on the Application of Standards

A Government representative of Myanmar indicated that, in their determination to eliminate forced labour and to continue Myanmar's cooperation with the ILO, the authorities in his country had taken significant actions in response to the conclusions and the aide-mémoire of the very High-Level Team (vHLT) which had visited Myanmar in February. The vHLT had been received by the Prime Minister of the Government of the Union of Myanmar on behalf of the State Peace and Development Council (SPDC) on 22 February 2005. The Prime Minister, in his letter of 10 March 2005 to the vHLT, had reiterated Myanmar's commitment to the elimination of the vestiges of forced labour in close cooperation with the ILO.

Turning to the case of U. Shwe Mahn, he recalled that U. Shwe Mahn had originally been sentenced to death for high treason, a sentence which had later been commuted to life imprisonment and then again reduced to five years' imprisonment. Hardly any nation would release someone who had committed such a serious crime. But the Myanmar authorities had released him, as requested by the Governing Body, to show the Myanmar authorities' willingness to further build confidence and as a sign of positive cooperation with the ILO. As such, this was a major concession on the part of the Myanmar Government. A focal point in the armed forces for dealing with Convention No. 29, headed by Deputy Adjutant-General Colonel Khin Soe and assisted by seven General Staff Officers Grade-1, had been established on 1 March 2005. Colonel Khin Soe and two members of the focal point had met with the ILO Liaison Officer a.i. on 12 May at the Department of Labour at the latter's request. There could be further meetings between them as and when necessary.

Indeed, the Minister for Labour had already informed the Director-General of the ILO of the aforementioned actions and had given such assurances by his letter dated 21 May 2005. He had also emphasized Myanmar's readiness to consider a new approach for the elimination of forced labour and to begin discussions at an appropriate time and level to be determined between the two sides. The Government of Myanmar had fully cooperated with the ILO Liaison Officer a.i. in dealing with the complaints related to requisitions of labour. All 50 cases in 2004 and further eight cases in 2005 reported by the ILO Liaison Officer a.i. had been disposed of.

Turning to three cases of complaints for exacting forced labour which were mentioned in the report of the Liaison Officer a.i. of June 2005 (Document No. C.App./D.6), the speaker noted that this document reported that there had been no further developments regarding the Toungup and Hinthada cases and that in the Aunglan case, the complainants had withdrawn the case under duress. Actually, in the Toungup case, actions had been taken against those responsible and the case had already been closed. In the Hinthada instance, the complaints against the head of the Village Peace and Development Council (VPDC) had been rejected by the Township Court as there was no evidence of forced labour. Then the head of VPDC, in his personal capacity, had lodged charges against the complainants for false complaints and defamation against him. The complainants had been found guilty and were fined accordingly. They had since been released after settling the fine. As for the Aunglan case, the Field Observation Team (FOT) had filed a report that Nga-pyin village road had been reconstructed annually by the villagers on a voluntary basis and there had been no forced labour nor forced cash contribution. In fact, U Win Lwin, the person who had died accidentally when a mound of laterite had collapsed on him, was the major beneficiary of the road since he was the sole owner of a motor vehicle in the village. His relatives had been deceived by a third person that had told them that they could receive financial compensation. Later on, they had withdrawn the complaint with their full consent. There had been no undue pressure from the authorities to force them to withdraw the case. In recent times, the authorities had encountered an increasing number of false complaints. They were ready to discuss with the ILO at an appropriate time and level to find a solution to this problem.

The ILO Liaison Officer a.i. had been accorded the same freedom of movement accorded to diplomats and UN personnel within the established procedures. The Liaison Officer a.i. had mentioned in his report that he was able to freely undertake travel in line with the previously established practice, and that he could visit parts of Mon State and southern Kayin State from 18 to 20 May at a very short notice. The above-mentioned actions of the Myanmar Government clearly testified to its political will and the commitment to eliminate forced labour in the country and its willingness to continue its cooperation with the ILO.

The speaker protested against the participation in the Committee by Mr. Maung Maung, who in his Government's view was a civil servant turned traitor, a criminal, a fugitive from justice and a terrorist. Myanmar had been put under constant pressure on the issue of forced labour by the ILO based on false, distorted and exaggerated information provided by him. He concluded by stating that his Government was firmly committed to the eradication of forced labour in the country.

The Worker members stated that once again the situation in Burma/Myanmar had worsened. Forced labour continued to rage with even greater brutality and the Government demonstrated its bad faith, as established by numerous sources, to mention only two, which would not raise any doubt: the report of the Committee of Experts and documents Nos. 6 and 7 prepared by the Office concerning recent developments.

The Committee of Experts had once again examined the follow-up given to the following recommendations of the Commission of Inquiry of 1998: (1) a legislative recommendation to modify the basic laws of 1907 and 1908, so as to bring them into conformity with Convention No. 29 by abolishing any possibility of requisitioning labour; (2) an administrative recommendation to ensure that, in practice, no forced labour could be imposed by the army, nor by other authorities; and (3) a judicial recommendation to apply effective criminal sanctions in cases of forced labour.

The report of the Committee of Experts was implacable: the laws were still not amended or modified in spite of 30 years of promises. The Orders left the laws unchanged and proved to be inefficient. At the very least, they had to be accompanied by concrete measures which would ensure that, in practice, no labour could be imposed. To that effect, the Committee of Experts recommended four types of action: (1) that specific and concrete instructions be issued to the civilian and military authorities. However, if they were in fact issued, they did not provide for or indicate the various forms of prohibited labour; (2) that publicity was given to the Orders. However, although they had been translated into all dialects, apparently they had not been distributed or displayed in ethnic areas, where the prevalence of forced labour appeared to be the highest; (3) the need to budget adequate means to hire free wage labour for public activities which were based on forced labour. In its latest report, the Government provided no information on this subject; and (4) that monitoring machinery be established. The Committee of Experts observed that the Convention 29 Implementation Committee, as well as field observation teams, lacked credibility. The allegations of forced labour were examined by the very same authorities that imposed the forced labour - the administration and the army - and were therefore systematically rejected. The cases brought before the courts were systematically rejected and declared not receivable. For the first time, the complaints were brought before the courts, but none of the six complaints lodged in 2004 had been declared receivable. Even worse, following their contacts with the ILO Liaison Officer a.i., certain victims had been arrested or imprisoned for alleged defamation.

The observation of the Committee of Experts was to a large extent corroborated by the recent information provided by the Liaison Officer a.i. and the ICFTU, as well as by the specifics concerning the places, the factual dates and the names of implicated army officers. Thus, the ICFTU already had numerous incidents of forced labour and recruitment recounted by the victims to be included in its next report: other documents provided by the NGO mentioned other cases of exactions suffered by civilians and ethnic minorities. The political context had deteriorated. The Government had changed faces but not policy. The permanent representative of the Government in Geneva could not continue to carry out his functions and Aung San Suu Kyi was still strictly assigned to her residence where she was virtually held incommunicado.

The total lack of cooperation with the ILO had been demonstrated on several occasions: the vHLT had not been received at the appropriate level and the Liaison Officer a.i. did not dispose of the initially accepted freedom of movement. Certainly, two or three positive facts could be noted: the liberation of U. Shwe Mahn, who nevertheless remained convicted of terrorism and high treason; the fact that the Supreme Court had declared that the contacts with the ILO had not constituted an offence; several proceedings instituted against several guilty persons - civilians - and not military ones, who were mainly responsible for forced labour.

After reviewing the case of Myanmar once again, the conclusion stayed clear; the sentiment was that, unfortunately, forced labour was "far from being a practice on the way to extinction", that the Government was not at all disposed to eliminate forced labour in the country and that moreover, henceforth, proceedings would be instituted against those complainants who submitted a complaint based on motives found to be groundless.

The Worker members protested against the accusations brought by the Government against the persons who strove for freedom of association and freedom of speech - a familiar method in the history of infamous governments.

The Worker members quoted from the 2004 Conference Committee conclusion that "the Governing Body at its next session should be ready to draw the appropriate conclusions, including reactivation and review of the measures and action taken including those regarding foreign direct investment, called for in the resolution of the International Labour Conference of 2000, unless there was a clear change in the situation in the meantime".

The Worker members observed that the Governing Body had discussed Burma and Convention No. 29 in November 2004 and March 2005, and, given the absence of any significant change, drew the appropriate conclusions. If anything, the situation had deteriorated both politically and in regard to the Government's cooperation with the ILO.

The Worker members pointed out that the development of a new Constitution lacked credibility inside the country and within the international community, as the National League for Democracy (NLD)was still barred from participating and its leader remained under house arrest. They understood that there had been no access to her for many months and there were growing concerns about her health.

A number of ethnic areas such as Shan State and Arakan State had experienced new suppression, arrests and turmoil. The International Confederation of Free Trade Unions (ICFTU) had documented an increase in forced labour in these areas. The discussion was not about the degree to which the Government was cooperating with the ILO, but about what the ILO could do on behalf of victims of forced labour. They said that the ineffectiveness of actions over many years had condemned many people to fundamental human rights abuses.

Quoting the Director-General's document, the worker members pointed out that a broad majority of Governing Body members were of the opinion that the reactivation of the measures to be taken under article 33 of the ILO Constitution in accordance with the 2000 Conference resolution would be fully justified. The vHLT was obliged to abort its mission after only two days having failed to secure meetings at the highest level.

The Governing Body of March 2005 attempted to ascertain what few positive developments had taken place and they accepted that some were not unimportant. However, forced labour was still being exacted with absolute impunity, not a single military official having been prosecuted. In addition, most of the concrete steps outlined in the aide-mémoire of the vHLT had not been implemented. The ILO's patience had almost run out. The March Governing Body agreed to a reactivation of the measures under article 33 and this was acted on by the Director-General in April. The reactivation was carried out in a ?soft' manner in the hope of positive developments with regard to the strengthening of the ILO presence among others.

But, even given the belated release of U. Shwe Mahn and his apparent good health, he still remained guilty of high treason for simply providing information on forced labour to the ILO and his association with the Federation of Trade Unions-Burma (FTUB). This could not be allowed to stand. Furthermore, there had been more negative developments over the past few weeks: the strengthening of the ILO presence was being hampered by visa refusal for an additional staff member and of the Liaison Officer a.i. freedom of movement was severely restricted. He now had to submit an itinerary 14 days in advance.

Finally, and most insidious of all, the Liaison Officer a.i. had been informed that "false complaints of forced labour were placing a great drain on government resources and undermining the dignity of the State ... and that legal action would be taken against complainants or their representatives who lodged false complaints". The ILO had directed the Liaison Officer a.i. to suspend contacts in view of the seriousness of this development.

Referring to the report of the Liaison Officer a.i. it appeared that not a single case of forced labour that he had brought to the attention of the authorities since March 2005 had been found to be valid. Those who had provided the information to the Liaison Officer a.i. were now liable to prosecution under the new policy. They sought assurances that this would not happen.

The Worker members found it ominous that the notion of voluntary labour had crept back into the response of the Implementation Committee to explain away the allegations.

The Worker members were of the opinion that the Government had quite deliberately set out to undermine the ILO presence and neutralize the ability of the Liaison Officer a.i. to receive complaints or even talk to people.

In view of the foregoing, the Worker members presented a number of proposals. The constituents should give particular attention to ensuring that no direct foreign investment, imports or exports, grants, loans or credits should be made to state or military-owned enterprises, including those operated by international private equity funds, would contribute directly or indirectly to the perpetuation or extension of forced or compulsory labour. Several States and organizations had already taken steps along these lines. Secondly, the Worker members proposed that the constituents should report regularly on the above-mentioned issue in time for the November Governing Body to allow the situation to be assessed and a plan of action to be undertaken by the ILO.

The Worker members called on the Conference Committee to request the Director-General to invite all international organizations referred to in the 2000 resolution to reconsider any cooperation with the Government and to assess and report on any forms of material and financial assistance extended to the country which could affect directly or indirectly the practice of forced labour. The request applied to international and regional financial institutions, multilateral development agencies, and international lending agencies.

The Worker members also proposed that the Director-General be invited to renew the ILO's request to the ECOSOC that it place on the agenda of its July 2006 session, an item concerning Myanmar's consistent failure to implement the recommendations contained in the report of the ILO Commission of Inquiry.

The Worker members further proposed that the Committee share the view of the vHLT and the Governing Body with regard to the necessity to further strengthen the Liaison Office, insisting on the importance of its field capacity, and that the Liaison Office concentrate on reinforcing policy dialogue with national authorities, including members of the State Peace and Development Council (SPDC) and the military at all levels, taking advantage of the authorities' commitment to "constructive cooperation with the ILO", as expressed in the Minister of Labour's letter of 21 May 2005.

Finally, the Worker members proposed that ILO monitoring activities on forced labour be further developed, especially with respect to ethnic areas. The Worker members called on the Government to guarantee the complete freedom of movement of the Liaison Officer a.i. and issue visas without further delay for additional staff. They demanded that the Government completely exonerate those convicted of high treason because of their contact with the ILO and the FTUB, as well as an end to the new policy of prosecuting those considered to be providing false information regarding forced labour to the ILO.

The ILO's credibility was at stake and it must continue to compel the Government to live up to its obligations under Convention No. 29, as well as to demonstrate to all those affected by forced labour that the international community, led by the ILO, actively supported their expectations for a better life.

The Employer members shared the concerns of the Worker members in relation to this long-standing and troublesome case. They observed that the Conference Committee's mandate to examine the measures taken to implement the Commission of Inquiry's recommendations and to apply Convention No. 29 by Myanmar was straight forward. As a fundamental matter, there was a gross failure by the Government of Myanmar to meet the international obligations that it had voluntarily undertaken 50 years ago to eliminate forced labour.

The Employer members considered that the fact that the Government's failure to implement Convention No. 29 was so obvious rendered incomprehensible its failure to remedy the situation. The legal authority for the exaction of forced labour continued to be in place, as the Village Act and the Towns Act continued to confer broad authority on local authorities to requisition labour in violation of Convention No. 29. Noting that the Government representative had spoken of constraints in this respect, the Employer members observed that the only constraint they could identify was a lack of political will. Besides failing to revoke the Village and Towns Acts, no other concrete action had been taken to immediately bring to an end the exaction of forced labour in practice, in particular by the military, as called for by the Commission of Inquiry and the Committee of Experts. In paragraph 6 of its observation, which highlighted the heart of the matter, the Committee of Experts had identified four areas in which action should be taken by the Government to achieve this outcome, namely issuing specific and concrete instructions to civilian and military authorities to end the practice of forced labour, ensuring that the prohibition of forced labour be given wide publicity, providing budgeting of adequate means for the replacement of forced labour and ensuring the enforcement of the prohibition of forced labour. As the Government had never said that it could not put a stop to forced labour, it was obvious to the Employer members that it simply lacked the will to do so.

The Employer members observed that in contrast to previous years, when the Government used to take some small steps just before the Conference, the situation this year involved a regression in the Government's attitude and backsliding from the previous state. Following a discussion at the November 2004 Governing Body, a vHLT had arrived in Yangon only to find out that it would be unable to meet with the highest authorities in Myanmar even though the Government had been aware of the vHLT's terms of reference. Moreover, the Conference Committee had now been informed that the ILO Liaison a.i. Officer had limited freedom of movement. The fact that the Governing Body had decided to transmit the 2000 resolution adopted by the Conference under article 33 of the ILO Constitution, to the ILO member States and international organizations for appropriate action, indicated that it had lost its "wait-and-see" attitude and was losing patience.

The Employer members considered that the begrudging attitude of the Government to the release of prisoners and its minimalist proposal for a "new approach" hardly inspired any confidence. In their view, the bottom line was not the "process" but the achievement of substantive outcomes in the elimination of forced labour. It was now time for concrete action. Anything else was a travesty of international justice and the rights of forced labourers in Myanmar. The Employer members concluded by inviting the Myanmar Government to do the right thing by effectively eliminating forced labour.

The Government member of Luxembourg, speaking on behalf of the Member States of the European Union, as well as Bulgaria and Romania as countries in the accession process; Turkey and Croatia as candidate countries; Albania, the former Yugoslav Republic of Macedonia, Bosnia and Herzegovina and Serbia and Montenegro as countries of the Stabilisation and Association Agreement and potential candidate countries; Norway as a member of the European Free Trade Association (EFTA) and of the European Economic Area; and Switzerland and Liechtenstein as members of EFTA, observed that no convincing steps had been taken by the authorities in Burma/Myanmar as a follow-up to the aide-mémoire of the vHLT who had visited the country in February 2005 as well as the letter of the Director-General of the ILO. This ran against the request made by the March 2005 session of the Governing Body for the Burma/Myanmar authorities to take urgent and well-defined steps to eradicate forced labour, and the European Union's request for these steps to be implemented "well before the June 2005 International Labour Conference". The European Union shared the Committee of Experts' grave concern at the lack of implementation by the authorities in Burma/Myanmar of the 1998 recommendations of the Commission of Inquiry suggesting that legislation be brought into line with Convention No. 29, that the local authorities, especially the military, no longer impose forced or compulsory labour, and that those imposing forced labour be brought to justice. Although these recommendations were made seven years ago and were still valid, no significant and sustained action had been taken for their implementation.

Although the European Union continued to believe in the value of the Joint Plan of Action, designed to eradicate forced labour, they shared the concerns of the vHLT with regard to its future as recent actions by the Burma/Myanmar authorities had called into question their commitment to this Plan of Action. The authorities' persistent policy of unnecessary delay indicated a lack of will which was further reflected in the fact that the authorities had still not created an environment in which victims of forced labour could be assured that they would not suffer retaliation for their cooperation with the ILO. In this respect, the European Union called for assurances from the Burma/Myanmar authorities at the highest level that no action would be taken against any person who lodged a complaint on forced labour.

The European Union and the other delegations noted that in spite of the Burma/Myanmar authorities' repeated assurances of good intentions, in practice forced labour continued to be exacted on a very broad scale in many parts of the country, in particular by the military, and sometimes in circumstances of severe cruelty and brutality as had been noted by the Committee of Experts. While changes could not occur overnight, the ILO had been considering this issue for nine years, the Commission of Inquiry had provided a set of recommendations, High and very High-Level Teams had visited the country, and an aide-mémoire containing concrete steps to facilitate the effective eradication of forced labour had been presented to the authorities, and even a Joint Plan of Action had been elaborated. A period of nine years seemed to be more than adequate for the Burma/Myanmar authorities to have brought their practices into line with the ILO recommendations. Despite this, the measures taken had been insignificant to address effectively the continuous practice of forced labour in the country.

Although the European Union and the other delegations welcomed the release of U. Shwe Mahn, they also considered that neither he nor the other two persons should have been charged in the first place, simply for having contacts with the ILO, and that the charges against all three persons involved should be lifted altogether. Moreover, although they welcomed the fact that the Liaison Officer a.i. had been able to meet with the Foreign Minister and had been promised "interaction" with the military focal point, they considered that convincing evidence of a substantive change in political will, approach and corresponding action by the authorities was still lacking. They continued to believe that the ILO should have access to the authorities at the highest level on a regular basis.

The European Union had therefore come to the following conclusions. First, the European Union asked for measures under article 33 of the ILO Constitution to be revisited with a view to their reinforcement, considering that a wait-and-see approach was no longer acceptable when forced labour was continuing, and in some cases leading even to the death of those involved. Second, the European Union demanded that the authorities in Burma/Myanmar took immediate and concrete steps to eradicate forced labour, as outlined in the report of the Commission of Inquiry in 1998 and in the aide-mémoire of the vHLT in February 2005, and further asked for an explicit reference in the proposed draft Constitution banning the practice of forced labour, in line with Myanmar's commitments to the ILO. Third, the European Union strongly supported maintaining and reinforcing the ILO's presence in Burma/Myanmar to achieve this goal. The implementation of a facilitator mechanism, as outlined in the Joint Plan of Action would be a step in the right direction.

The Government member of the United States pointed out that once again, the reports before the Conference Committee presented a mixed picture of developments concerning the Government of Myanmar's observance of Convention No. 29. The Government representative indicated that in February 2005, the authorities had informed the ILO Liaison Officer a.i. that a township court had convicted and sentenced four local officials under section 374 of the Penal Code in three separate trials. Though the Government of the United States could not confirm that the officials were serving their sentences, this was the first time that a complaint had been lodged under this section of the Penal Code. She recalled that one of the Commission of Inquiry's recommendations was that penalties under this section be strictly enforced. Three trials in one court did not constitute strict enforcement in a country where forced labour was as widespread as it was in Myanmar, but she indicated that the Government of the United States did not discount this development. And, although U. Shwe Mahn should never have been imprisoned, his release in April and the meeting of the Liaison Officer a.i. with the army focal point for forced labour in May were steps in the right direction.

But these steps were overshadowed by the many other indications that the Government's stated commitment to eliminate forced labour was mere rhetoric. The vHLT had not been received at the appropriate level in Rangoon and had to cut short its visit. The Government had not approved the ILO's request to send another official to Myanmar to assist the Liaison Officer a.i. The Convention 29 Implementation Committee's response to the numerous complaints of forced labour submitted to it by the Liaison Officer a.i. had been inadequate, and in April, the Government had informed the Liaison Officer a.i. that legal action would be taken against so-called "false complaints", a development that struck at the heart of the Plan of Action to which the Government had once said it was committed. None of the three recommendations of the Commission of Inquiry had been carried out. Moreover, all the available evidence indicated that the use of forced labour, particularly by the army, continued unabated and was sometimes accompanied by acts of extreme violence.

Finally, the Government representative stated that under these circumstances, the Minister of Labour's offer to the Director-General to consider a new approach for the elimination of forced labour appeared to be little more that a delaying tactic. She considered that the authorities had had an opportunity to discuss a new approach when the vHLT visited Rangoon in February, but had declined to do so. The Government needed to demonstrate by its deeds that its commitment to the Plan of Action was genuine and that it was prepared to create the conditions under which the Plan could be implemented. It should comply fully with the suggestions made by the vHLT in its aide-mémoire. The time was long past when the ILO could be satisfied with discussions of a new approach for the elimination of forced labour in the absence of evidence that the Government was prepared to carry them out. The Government representative therefore repeated her strong plea to demand action instead of promises for the sake of Myanmar's workers and workers everywhere.

The Worker member of Singapore expressed regret at the fact that the issue of forced labour in Myanmar had been under discussion for 11 years without much progress, which demonstrated the Government's contempt for the ILO supervisory mechanism. The feeble explanations given each time in order to obfuscate and divert attention from the real issues had generated growing frustration. The Conference Committee should no longer maintain a "wait-and-see" attitude while Burmese people were being forced into bondage and tortured if they refused to do so and while children were being forced into the army. The Conference Committee should not forget that each of the complaints of forced labour received by the Liaison Officer a.i. and the thousands of documented complaints by the ICFTU, FTUB and other human rights organizations represented human lives which had been subjected to the cruellest form of deprivation, i.e., of one's freedom to decide whether or not to work.

The speaker emphasized that, according to the Liaison Officer a.i., the worst forms of this cruel treatment had taken place against the ethnic minorities primarily in the remote border areas where there was heavy military presence. The Asia Forum for Human Rights and Development (Forum-Asia) had reported the continued persistence of forced labour, extortions and exactions concerning the Rohyngia Muslims in the Northern Rakhine State. They were forced to do sentry duty and erect gates and bamboo fences around the hamlets of Maungdaw purportedly to protect the villagers, but they had to provide their own construction materials, such as bamboo and wooden poles and were also required to maintain the gate and fences. Two hundred fifty Rohyngia Muslim villagers in Maungdaw were forced to build a model village with houses for those resettled from other parts of Burma. In the words of one Rohyngia villager from the Gaw Yah Khar Li Village Tract in Maungdaw Township, "we are living like slaves inside our own country. We have no rights there. They can confiscate our land any time. They can use us as labour whenever they want". The speaker deplored this situation and emphasized that the Burmese Government should be made to stop this.

The speaker further noted with grave concern the intimidation and harassment conducted against those who complained of forced labour including through the applicable legal processes, noting that the ability to complain without fear of persecution was absolutely essential to preserve the integrity of the system. Three forced labour complaints had been rejected by the courts purportedly because of lack of evidence. The speaker found it appalling that two of the three dismissed complainants had been prosecuted for defamation and imprisoned for six months. She further took note of the grave concerns raised by the Liaison Officer a.i. in his report with regard to his meeting with the Director-General of the Department of Labour on 26 April 2005 during which the latter had again stressed that legal action would be taken against those who lodged false complaints. Furthermore, on 9 March 2004, three persons had been convicted of high treason including on the basis of contacts with the ILO Liaison Officer a.i. Although the Court had decided that such contacts were legal, it nevertheless seemed to imply that the ILO was some kind of an illegal or clandestine body for which a special ruling was necessary. This undermined the very basis for having a Liaison Office. In addition to this, there had not been a single conviction under section 374 of the Penal Code, despite numerous complaints of forced labour. Moreover, specific complaints brought to the attention of the Convention 29 Implementation Committee had been systematically denied. Finally, the Liaison Officer a.i. had indicated in his report that two individuals had been arrested after returning to their village following a visit to him in Yangon to lodge a complaint. This demonstrated the systematic failure to investigate forced labour cases and raised serious doubts about the credibility of the system. The speaker concluded by urging the Government to stop the persecution of minorities through the use of forced labour, the forced recruitment of child soldiers and the harassment against those filing complaints of forced labour. She called for a strengthening of the ILO's presence in Myanmar and supported the suggestion of the Liaison Officer a.i. to second an ILO official to Yangon.

The Government member of Australia expressed strong support for the role played by both the vHLT and the ILO Liaison Officer a.i. in Yangon, in assisting the Myanmar authorities to observe Convention No. 29, and further supported the Office's expansion to provide greater technical cooperation, calling upon the Myanmar Government to take the simple step of granting a visa allowing an additional ILO staff member to join the Liaison Office. Noting that the elimination of forced labour practices throughout the country should be given high priority based on the firm commitment of the Government, the speaker deeply regretted the circumstances which prevented the vHLT from successfully completing its mandate and again called upon Myanmar to cooperate fully with the ILO so as to demonstrate its commitment to eliminating forced labour. Critical to this would be urgent action on all the four points set out in the vHLT's aide-mémoire of 23 February 2005. The speaker further commended the decision to release U. Shwe Mahn but also expressed disappointment at the fact that he continued to be impugned. Noting the Government's willingness to consider a new approach to the elimination of forced labour, he urged it to move quickly to engage the ILO at a senior level to ensure that this commitment was translated into concrete action. He noted that despite commitments made, the Conference Committee still awaited real results and should therefore recommend to the Governing Body to closely consider progress in the Government's new approach at its meeting in November 2005.

He further noted the establishment of a focal point on forced labour in the military to address the serious problems of requisition of labour by the Tatmadaw, and urged the Myanmar Government to ensure its full and effective cooperation. A critical first step in this respect would be to establish clear protocols for cooperation with the Liaison Officer a.i. and this could only be achieved through regular and open contacts. He further called on the Government of Myanmar to take genuine steps to ensure that Myanmar citizens could cooperate with the ILO with full confidence that they would not face retribution for doing so. The principle of unfettered access to the Liaison Officer a.i. and any facilitator was central to cooperation between the ILO and Myanmar and was a key requirement for the future implementation of the Plan of Action.

The Government representative concluded by emphasizing his country's deep concern over the situation in Myanmar. The Government had failed to address the troubling issues raised in the ILO and other international fora regarding forced labour and had failed to meet its international obligations in this respect. His country remained particularly concerned about the lack of concrete progress made toward political reform and national reconciliation in Myanmar, and the continued detention of political prisoners including Aung San Suu Kyi.

The Worker member of Italy pointed out that the military Government representative failed to address fundamental problems such as a highly centralized decision making structure, severe restrictions on private commercial activity, disproportionate military spending (49.9 per cent of public expenditure) to create the largest army in Southeast Asia. The country ranked 142 in the corruption ranking of 145 countries. Myanmar was the leading producer of methamphetamine and second producer of opium. The garment and textile industry was the conduit for money-laundering and clandestine export of narcotics. Business could not be carried out without the involvement of the junta under a 1989 law. The monopoly of economic production was in the hands of the Union of Myanmar Economic Holdings and its branch, Myanmar Economic Corporation. European Union foreign direct investment represented 30.37 per cent of total FDI, mostly in the oil and gas sector, the major funding instrument of the military regime. The EU's share of garment imports from Myanmar was about 66 per cent. Five ASEAN countries had invested some US$3.9 billion as of March 2004, representing 51.08 per cent of total FDI.

The speaker said that 15 years of constructive engagement and threats of political sanctions had failed to bring about even a single democratic reform aimed at ending forced labour. The fact that discussion on violations of Convention No. 29 were still ongoing demonstrated the Government's uncompromising attitude. Only coordinated international action could bring effective change. It was time for ILO constituents, international financial institutions, including the ADB, the Greater Mekong Subregion and the related Trade and Investment Flagship Programme to take effective measures. But international organizations and NGOs which had any dealings with the junta should also reconsider their cooperation. Governments, employers and workers should review their relations with Myanmar and take suitable steps, including recourse to the International Court of Justice, to fight against the continuation or extension of forced labour. The speaker appealed to them to ensure that no foreign direct or indirect investment, imports or exports, grants, loans or credits that could lead to the continuation or extension of forced labour be made to the regime. She also appealed to governments and the European Union to implement Article XX of the GATT, which referred to measures relating to the protection of human health and products of prison labour. Finally, she appealed to governments and enterprises to contribute to the changes necessary to bring democratic development and a stable economy.

The Government member of Canada expressed his country's grave concern at the lack of improvement in Burma's situation which remained extremely serious. He thanked the vHLT, the ILO Liaison Officer a.i. and the Office for their efforts in trying to engage the Burmese authorities and regretted the lack of cooperation by the authorities who prevented the vHLT from successfully completing its mission. The speaker welcomed the release of U. Shwe Mahn and noted that the Labour Minister's letter of 21 May 2005 to the ILO Director-General had indicated that Burma was ready to consider a new approach for the elimination of forced labour. Nevertheless, the absence of any significant improvement, and in particular the authorities' failure to implement the measures recommended by the Commission of Inquiry and the aide-mémoire of the vHLT, was deeply disappointing. His country had watched with growing unease the unfavourable developments that had been unfolding in Burma and had made clear on many occasions that Aung San Suu Kyi and other leaders of the democratic movement should be liberated immediately and unconditionally while noting that the current National Convention process lacked any credibility. His country remained concerned about human rights violations, which were being perpetrated throughout the country, particularly in situations of conflict, including in addition to forced labour, extra-judicial executions, torture, rape, internal displacement and destruction of villages and livelihoods.

He concluded by calling on the Burmese authorities: (1) to take immediate and effective measures to eliminate forced labour as outlined in the report of the Commission of Inquiry of 1998 and in the aide-mémoire of the vHLT of February 2005; (2) to facilitate the addition of an ILO staff member to the Liaison Office; (3) to reinstate the freedom of movement necessary for the Liaison Officer a.i. to effectively fulfil his mandate; (4) to permit the establishment of a facilitator mechanism and ensure that no action be taken against any person who made a complaint concerning forced labour; (5) to undertake a dialogue with the ILO at the highest level to develop a new approach for the elimination of forced labour. The speaker finally indicated that in the absence of concrete results in the eradication of forced labour, his country supported strengthening the implementation of the measures enumerated in the 2000 resolution of the Conference.

The Worker member of the Netherlands drew the Committee's attention to the role of the OECD Guidelines for Multinational Enterprises in the context of the implementation of the 2000 resolution of the Conference and the reporting thereon. The 2004 decision of the OECD Investment Committee to limit the scope of application of the Guidelines to FDI and FDI-related trade had considerably restricted the use of the Guidelines for this purpose. This was a fact even in countries such as the Netherlands where the Government had previously suggested that trade unions should address all economic relations of enterprises under the OECD Guidelines. As the ILO was stepping up its efforts to ensure implementation of the 2000 resolution, it was important also to review the role of these Guidelines. The speaker recalled that the National Contact Points set up by OECD member States had the task of promoting better awareness of the OECD Guidelines. In the context of Burma, this could mean giving more publicity to the reviewed economic relations of a given government with Burma. The Contact Points should also draw attention to the fact that, under the Guidelines, enterprises should make a contribution to the elimination of forced labour and should respect established government policies, for instance, as in the case of the Netherlands, a policy of discouragement of economic relations. The National Contact Points should seek the support of employers' organizations for such an awareness-raising campaign, while the trade unions should play a role in such an effort at the enterprise, national and international levels, including through the European Works Councils. The Trade Union Advisory Committee of the OECD had held two workshops in 2005 to draw the attention of European Works Councils to the OECD Guidelines. In cases of FDI and FDI-related trade, where enterprises refused to take the action demanded by the 2000 Conference Resolution and the OECD Guidelines, trade unions would continue to bring complaints to the National Contact Points. In the past, several such complaints had led to changes in the behaviour of companies. Where cases were outside the scope of the OECD Guidelines, the Government should open an alternative way for addressing them. In the Netherlands, efforts were being made to address the continued timber import from Burma by Dutch enterprises. Following appeals by the Netherlands Burma Center, some firms had agreed to stop their imports, while four enterprises had not, i.e. Worldwood, Bruijnzeel, Boogaerdt, and Van der Stadt.

The Government member of Indonesia, speaking on behalf of the Government members of the Association of South-East Asian Nations (ASEAN) countries, expressed appreciation to the ILO for its continuing support and cooperation with the Government of Myanmar in its effort to eliminate the practice of forced labour in the country. The ASEAN countries acknowledged the importance of the ILO presence in Myanmar and the role played by the Liaison Officer a.i. in assisting the Myanmar authorities in the observance of Convention No. 29. The commitment of the Government of Myanmar to observe the Convention and to eliminate the practice of forced labour in the country was welcomed. The positive developments as contained in the letter dated 21 May 2005 from the Minister of Labour of Myanmar to the Director-General were noted with interest, in particular the Government's readiness to consider a new approach in addressing the issue, the freedom of movement extended to the Liaison Officer a.i., the release of U. Shwe Mahn, in response to the aide-mémoire presented by the vHLT and the conclusions adopted by the Governing Body in March 2005, as well as the recent meeting of the Liaison Officer a.i. with the Ministry of Labour and the Army focal point, in compliance with ILO's request. It was important to continue the process of dialogue and cooperation rather than to adopt alternative measures. In this regard, the Government of Myanmar had expressed its willingness to continue to cooperate with the ILO. The ASEAN countries therefore called on the Myanmar Government and the ILO to continue their dialogue, while the Conference Committee should continue to play a constructive role in this matter.

The Government member of New Zealand recalled that her country had repeatedly called for immediate action by the Government of Myanmar to cease the deplorable practice of forced labour, to empower the victims of forced labour, and to set in place clear and tangible measures to punish perpetrators. However, she observed with deep concern and frustration that once more there had been little tangible improvement. She deeply regretted that the patience of the international community continued to be tried, that the small concessions made by the Government had not gone far enough, and most significantly, that these direct violations of the human rights of Myanmar's people continued to go unaddressed by their Government.

Concerning cooperation with the ILO, particularly through the resident presence in Yangon, which was an essential element of the Government of Myanmar's response to this serious situation, she remained concerned that the Liaison Officer a.i. had not regained the full range of freedom of movement granted to him previously and did not understand why it had not been possible for the Government to remove administrative barriers to the strengthening of the Liaison office. She looked forward to a credible explanation and corrective action in this regard. The international community required concrete evidence of the commitment of the Government of Myanmar to end forced labour. She took note of the meeting of the Liaison Officer a.i. with the military focal point and looked forward to more such meetings so that identifiable progress could be achieved. She also noted with interest the release of U. Shwe Mahn and trusted he would not suffer further harassment for carrying out his legitimate peaceful political activities.

The Government representative expressed concern, however, at the report of intimidation of those coming forward to the Liaison Officer a.i. with complaints of forced labour. She wished to express her country's support for the Plan of Action and noted that its implementation would depend on the establishment of the necessary political environment whereby complaints could be received by the Facilitator without fear of retribution. The fact that such conditions did not yet exist, and that the ILO Office had as a consequence been placed in an extremely difficult situation as outlined in the Report of the Director-General, should be of deep concern to the Conference Committee. She also noted that her country looked forward with interest to learning details of the "new approach" mentioned by the Government in their letter to the Director-General of 21 May 2005 and urged that this approach be based on the policy of zero tolerance to the use of forced labour and an immediate end to the culture of impunity.

She concluded by observing that although the ILO, through special sittings of the Conference Committee and discussions at the Governing Body, had registered time and again its deep concerns at the situation in Myanmar, the Government of Myanmar did not seem to have registered fully the seriousness of these concerns or share them. The time for concrete and credible action was well and truly overdue.

The Worker member of Japan stated that despite the promises of the Government, forced labour was being widely practised in Myanmar, as pointed out by the Committee of Experts. Political and financial support given by some countries to the Government of Burma through the Asian Development Bank (ADB) projects was one reason for the survival of the military regime and forced labour in Burma. Foreign investment in Burma had increased since the 2000 Conference resolution on Myanmar, with one-third of it being concentrated in the oil and gas sector. The ADB was involved in supporting the military regime through its Program of Economic Cooperation in the Greater Mekong Subregion (GMS Program) launched in 1992. In November 2001, the 10th Greater Mekong Sub-Region Ministerial Conference adopted a strategic framework for an integrated and prosperous Mekong subregion, identifying flagship programmes in areas such as transport and economic corridors, telecommunications and energy interchanges, and cross-border trade and investment. These programmes played an important role in encouraging ASEAN countries and multinational companies to invest in the energy sector in Burma. ADB had provided US$887 million in these projects, which included the Mawlamyine deep-sea port project and the Mawlamyine road section project in Burma. It was very regrettable that such financial and political support assisted the military regime to survive and thus forced labour continued to exist. Not only all ILO Members but also the ADB was responsible to eradicate forced labour in Burma. The speaker urged governments and employers to cease giving any advantages to the military regime of Burma.

The Government member of India noted that since the March 2005 session of the Governing Body the Liaison Officer a.i. had been able to visit certain parts of Mon State and southern Kayin State and had met with the Minister for Labour. He further took note of the assurances of continuing cooperation with the ILO provided by the Government of Myanmar and the new approach for the elimination of forced labour mentioned by the Minister of Labour in his letter dated 21 May 2005 to the ILO Director-General. The speaker noted that his country viewed these new developments positively and considered that the Government of Myanmar needed to be encouraged in its efforts to eliminate forced labour. He expressed the hope that the discussion before the Conference Committee would be constructive in helping the Government of Myanmar to move in the direction of further cooperation with the ILO.

The Worker member of the Republic of Korea raised the issue of the Shwe Natural Gas Project in Arakan State, in which Daewoo International and the Korea Gas Corporation were involved. Great concern had been expressed about these projects and their possible serious effect on local people, both in Arakan and Chin States, particularly with the increase in deployment of the armed forces under the pretext of guarding the pipeline. Forced relocation, forced labour, summary executions, torture and other human rights violations were claimed to have taken place, in relation to Unlocal and Total corporations. These claims seemed to be well founded, according to Nyi Nyi Lwin, who participated in the workshop on "What are the problems in the Shwe Natural Gas Project?", held in Seoul. Local fishermen entering the Shwe field were deprived of their ships and tortured. In addition, local inhabitants were drafted forcibly to cut down forests to build the Daewoo International Project Office. He requested the Government to ensure that measures would be taken to prevent the cases of Total and Unlocal being repeated. He called for the postponement of the extraction of the Shwe natural gas field until the time when the people of Western Burma could participate directly in decisions about the use of their resources and related infrastructure development without fearing persecution, including forced labour. He also called on the Government to provide more detailed information on the Shwe Natural Gas Project and to monitor it more closely. Finally, he also urged the Government of the Republic of Korea to suspend the Project and provide information to the Committee, taking all necessary measures in line with the Conference resolution of 2000 on the Shwe Natural Gas Project calling on constituents, the UN and other multilateral agencies to review relations with Myanmar and cease any relations that might aid the military junta to abet forced labour.

The Government member of Belarus declared that his country followed with attention developments in the situation of Myanmar, as appeared in the documents presented by the ILO and the information provided by the Government representative of Myanmar. Belarus took note of the progress which had taken place in the short period of time since the Governing Body's session of March 2005. He took note of positive dynamic, which demonstrated that a constructive dialogue with the authorities was taking place. Numerous facts attested to it: the extension of the dialogue between the ILO representative and the authorities and the confirmation of his freedom of movement in the country; the liberation of U. Shwe Mahn; the follow-up given to 56 complaints concerning forced labour, out of 58 in total; and the continuing progress in various directions provided for in the Plan of Action. The Government of Myanmar demonstrated by its deeds its engagement to fight sincerely the problem of forced labour in the country, the phenomenon which, according to the document "Alliance against forced labour in the world", today concerned more than 12 million individuals in all corners of the world. The speaker pointed out that progress in this domain would only be possible through constructive dialogue and cooperation with the ILO. The eradication of forced labour needed time and history had taught that when complex problems, especially social ones, were solved by force, the innocent population was the first to suffer and, in the end, the objectives were not reached.

The Worker member of Pakistan recalled that the issue of forced labour in Myanmar had been under discussion in the ILO since 1964 and that there was now urgency in making progress in eliminating this practice in the country. Forced labour was a violation of fundamental human rights and dignity, as emphasized by the 2005 Global Report under the Declaration of Fundamental Principles and Rights at Work. The Government of Myanmar had not yet amended the provisions of the Towns Act and the Village Act, which allowed for the exaction of forced labour, as requested by the Commission of Inquiry. The Government's argument that amendments could not be made due to the absence of a legislative body was devoid of truth, as it in fact recently had made legislative changes in other areas. He also urged the Government to implement all other recommendations of the Commission of Inquiry and the vHLT.

The Government member of the Russian Federation stated that the Russian Federation, like other participants in this discussion, was unconditionally devoted to the goal of eradicating forced labour in Myanmar. Energetic efforts undertaken by the Office to that end deserved to be commended. In fact, there had been recently some positive developments, such as the release of the third person originally convicted of high treason. Many members of the Committee had not considered these developments sufficient. The most effective way to achieve progress in this case was to continue dialogue with the Myanmar authorities, to preserve and develop the existing mechanisms of cooperation between the ILO and the Government of this country.

An observer representing the World Organization Against Torture stated that her organization was alarmed by the continued use of forced labour against hundreds of thousands of people in Myanmar, often associated with torture and other types of physical and psychological abuse. The Committee of Experts had been stressing its concern about the use of forced labour in Myanmar and the existence of legislation in contradiction with Convention No. 29 since 1964. However, no substantive measures had been taken by the Government to ban forced labour. As was noted by the ILO Director-General in his 2005 Global Report, still today there existed no political will in Myanmar to take strong measures against military and local authorities that benefited economically from forced labour.

The speaker emphasized that forced labour was always cruel, inhuman and degrading and as such it could be considered as an act of torture. In Myanmar, it was often accompanied by other forms of torture, including enforced displacement, rape, as well as food and health care deprivation or other ill-treatment resulting in death. Where resistance to forced labour was raised, further ill-treatment, detentions and extrajudicial executions followed. Furthermore, forced labour frequently entailed sexual exploitation, child labour, human minesweeping, the extortion and forced eviction of civilians, and extremely harsh labour conditions. Recent reports from the field spoke of government officers who had forced civilians to risk their lives by performing sentry duties, and a military commander who had beaten a civilian to death in Shan State for refusing to provide his vehicle for forced labour. Forum-Asia had provided evidence of renewed use of forced labour in the Northern Arakan State in construction work, harvesting, portering and other duties for the military. The enforced enrolment of children in the army, with the threat of imprisonment, was also a common practice throughout the country. She recalled that torture in Myanmar was by no means restricted to its direct association with forced labour and was often exerted upon pro-democracy activists, monks, or women in the form of sexual abuse.

She concluded by urging that all necessary measures be taken in order to ensure the compliance by Myanmar with the absolute interdiction of forced labour and other human rights abuses associated with it, and that concrete and energetic measures would be taken by the International Labour Conference to ensure the full implementation of Convention No. 29 and of the provisions of the June 2000 resolution.

The Government member of Japan said that it was clear from the discussion so far that many members were far from satisfied with the situation of forced labour in Myanmar. The question that therefore faced this Committee was whether to pursue punitive options or to further impress upon the Government of Myanmar the need to engage in dialogue and cooperation with the ILO. After long and agonizing consideration, his delegation had decided that the best way forward was to further encourage the Myanmar authorities to engage in dialogue with the international community. A number of positive steps had been noticed in this case, including the release of U. Shwe Mahn, who, in his view, could not be guilty of treason for having had contacts with the ILO, and the establishment of a focal point in the military for dealings with the ILO. Undoubtedly these positive steps needed to be further elaborated.

All positive steps that had been taken in Myanmar were due to the pursuance of dialogue between the international community and Myanmar. This should not be underestimated or undermined. The ILO was, and would be, an important contact in the country. As an outcome, it was important to ensure an improvement in the situation in the country, not just a demonstration of political will.

At the same time, excuses could not be made for the Myanmar Government. It was regrettable that improvement only occurred under pressure from the international community. His Government was not advocating a continuation of a "wait-and-see" attitude. To the contrary, he urged the Myanmar Government to take the concrete steps of facilitating contacts between the focal point in the armed forces on Convention No. 29 and the ILO at the appropriate high level, and ensuring full freedom of movement for the Liaison Officer a.i.. He also called for Members to use every multilateral and bilateral meeting at which Myanmar was present to remind the Government of its obligations. The situation should be further examined at the subsequent Governing Body session.

The Worker member of Germany recalled that the Governing Body had for years been dealing with the case of forced labour in Myanmar - an endless tragedy in which hundreds of thousands of people were subject to compulsory labour in road building and other infrastructure projects and services for the military, abduction of children by military forces, and, most recently, prosecution for having had contacts with the ILO. For years the Government of Myanmar had issued assurances that it was eliminating forced labour and cooperating with the ILO. Yet, she wondered why, if this were the case, instances of forced labour continued to be reported, no action had been documented by the Government in response to such complaints, no legal action had been taken against authorities that had used forced labour, the Liaison Officer a.i. was denied freedom of movement in the country, the vHLT had not been able to complete its mission, and the ILO had been disparaged at a press conference held by the authorities in Yangon. Patience was at an end in this case, and the credibility of the ILO and its Members was at stake. The ILO had already outlined a possible framework of action in its resolution of the International Labour Conference in 2000, and it was time to take such measures in collaboration with other international organizations.

The Government member of Cuba said that the question of the application of Convention No. 29 by the Government of Myanmar had been closely followed by her delegation since the adoption of the Conference resolution in 2000. Since that date, some joint action had been taken by the ILO and the Government of Myanmar - action which, according to the report, had yielded positive results. The presence of the ILO Liaison Officer a.i., who had been granted the same status as diplomats and United Nations personnel, had been an important factor in furthering dialogue and cooperation.

The speaker took note of the recent meeting between the Minister for Labour and the ILO Liaison Officer a.i., as well as the meeting held between the ILO Liaison Officer a.i. and the army focal point, both of which provided a good example of the Government's willingness to enter into dialogue and cooperation. She indicated that she considered in a positive light the letter dated 21 May 2005 from the Minister for Labour to the ILO Director-General. In considering the possibility of continued constructive dialogue and cooperation with the Government of Myanmar, her Government felt that coercive measures relating to trade and international investment were not suitable mechanisms for achieving progress in any country and, on the contrary, such measures created even greater difficulties for the people one wanted to protect.

Finally, the speaker encouraged the Government of Myanmar and the ILO to find, within the framework of a mutual commitment to constructive cooperation, solutions to the complex problems under discussion.

The Government member of the Republic of Korea said that his delegation had carefully considered the recent developments reported by the representative of the Government of Myanmar. His delegation had perceived the establishment of a focal point in the armed forces, the subsequent meetings between the focal point and the ILO Liaison Officer a.i., and the release of U. Shwe Mahn as positive developments. The ILO needed to maintain a solid presence and active engagement in Myanmar. At the same time, he associated himself with the concerns expressed by other delegations regarding the current situation in Myanmar and requested that the country demonstrate its political will to eliminate forced labour, with immediate and concrete actions. He urged the Myanmar Government to make clear at the highest level its intention to eliminate forced labour.

The Government member of China stated that the instances of progress which had been cited by the Government representative of Myanmar fully demonstrated its commitment to eradicating forced labour. These positive steps had been the result of cooperation and dialogue between the ILO and Myanmar. This dialogue and cooperation should be encouraged and confrontation should be avoided. Her delegation agreed with the statement made by the Government member of Indonesia who had spoken on behalf of ASEAN. She hoped the ILO and the Government of Myanmar would strengthen their cooperation.

A representative of the International Confederation of Free Trade Unions (ICFTU), speaking with the authorization of the Officers of the Committee observed that, since the last special sitting at the 2004 Conference, the political and social situation of the Burmese people had worsened. After the internal coup which had destituted General Kyn Nyunt and most of the military intelligence, the repressive situation all over the country had worsened dramatically, particularly in ethnic areas and along the borders, where there was an increase of violence from the army. The Nobel Peace Prize winner Aung San Suu Kyi remained under house arrest and totally incommunicado; U. Shwe Mahn, though finally released at the request of the ILO, was still accused of high treason by the Minister of Labour in his recent letter to the Director-General of the ILO.

During the last few months, there had been evidence of hundreds of cases of forced labour, not only in the border areas, where the army used forced labourers as porters and minesweepers, but throughout the country. He pointed to one case where the chairperson of the State Peace and Development Council (SPDC) of Myawaddi township in Karen State gave instructions obliging six villages and more than 2,000 people to implement the summer rice cultivation. Forced labour was also used in the construction of the India-Burma border trade road in Chin State. The army also used the labour of prisoners for road construction.

Moreover, during the last Governing Body session in March, the junta had organized a press conference in Yangon where the ILO was accused of exerting one-sided pressure on Myanmar by siding with expatriate destructionists, and during which the exaction of forced labour in Myanmar was presented as a cultural tradition of this country.

The speaker was very concerned by the number of persons who had come to the Liaison Officer a.i. to report on cases of forced labour that had been subsequently arrested and detained, and the fact that the vast majority of cases raised by the Liaison Officer a.i. had been declared false. The Committee should therefore take immediate steps to develop a mechanism enabling the victims of forced labour to seek and obtain redress, with full guarantees of security against reprisals, thus contributing to the fight against impunity. The speaker also urged both the Governments and the Employers to follow up the decisions of last November's Governing Body session, as regards the foreign direct investments in all their forms, in order to stop immediately any private investment and any other economic dealings with the regime, which might contribute to its stability and perpetuate forced labour. Moreover, the ILO's field capacity should be strengthened, in order to attain full freedom of movement and access to the people outside Yangon. The speaker urged the Committee to take the necessary measures which would allow the ILO, its constituents and other international organizations to force the junta to respect the fundamental human right not to be subjected to forced labour.

The Worker member of Australia stated that this case was a matter of political will - the choice to stand up for a people oppressed and abused by forced labour in a nation without democratic rights or a rule of law that met any test of judicial fairness. She referred to the report of Earth Rights International, which contained further disturbing information on prisoner porters, forced farming, sexual slavery, food theft and harassment of local leaders and villages, which seemed unbelievable in the twenty-first century.

The speaker emphasized that the Myanmar regime was well-known to the Governments, Employers and Workers of this Committee. This regime had tested their diplomacy to the limits and now mocked the Committee: not only had it enslaved its citizens in forced labour, but it held its democratic leader imprisoned. Despite this, its representative presented another set of excuses for some of the worst crimes against humanity and another set of false promises. While U. Shwe Mahn had been released, though he was guilty of no crime except standing up for his people's rights, another union organizer, with the Burmese Seaman's Union, Moe Naung, had been murdered for doing his job, and there was information of at least one more case of a trade unionist's murder.

Though the Workers and the Employers in this Committee stood together on this matter, the Governments' support was needed. The speaker urged the Governments to scale up their efforts to end trade and foreign direct investment, and called on the international financial institutions, including regional banks, to withdraw loans, grants and banking services from Myanmar, in order to make further economic and diplomatic relationships with this regime conditional on both the end of forced labour, and more broadly, on genuine democratic process.

The speaker thanked the Governments of the European Union, United States, Canada, New Zealand, India, Japan, the Republic of Korea and Australia for their commitment, but expressed the hope to see all the Governments in the Asia-Pacific region take a stand on the side of humanity and human rights, and to take the strongest possible stand against this regime. This would be especially important in 2006 when ASEAN and other governments would begin negotiations on a potentially significant trading bloc. Trade was not acceptable with a nation guilty of some of the worst violations of human and worker rights. In this regard she expressed her disappointment with the statement of the Indonesian Government, since the Indonesian Parliament had recently issued a resolution urging the Government to boycott the ASEAN meeting if military-ruled Myanmar took the rotating chair; the resolution also stated that the struggle of the people of Myanmar to improve the democratic process in the country should be supported also by South-East Asian companies, including those from Indonesia.

While the speaker was aware of concerns expressed by the Governments of Singapore, Malaysia and the Philippines on this matter, she urged these Governments to take a stronger stand and called on the majority in the Committee to take the strongest possible measures under article 33 of the ILO Constitution.

The Government member of Ukraine stated that his delegation aligned itself with the statement made by the Government member of Luxembourg, who had spoken on behalf of the European Union.

The Government member of the Libyan Arab Jamahiriya emphasized that the important matter under discussion should be examined in the light of the application of the Convention. The Government of Myanmar must take into account the observations made and take all necessary measures to implement the ILO resolutions.

The Government representative of Myanmar recalled that in his previous interventions at the Governing Body, he had expressed his fear that the discussion of this case would become politicized by some nations. He regretted that these fears had come true. Many speakers had touched on political matters which were not related to Convention No. 29. He strongly objected to this.

The Employer members expressed their disappointment with the closing statement of the Government representative of Myanmar. They had expected him to indicate what Myanmar would do as a positive response to the discussion of this case. Instead, he had simply confirmed their view that there was no political will to solve the problem. The matter that had been discussed was a correct legal policy question, which the vast majority of interventions had addressed. The issues at hand were relatively simple. The Employers were looking for an indication that Myanmar would amend or revoke the Village and Towns Acts, and widely publicize the prohibition of forced labour. Yet, the Government had not addressed these issues, which was extremely disappointing.

The Worker members recalled that this Committee had a long tradition of objectively reviewing the facts. The facts in this case were clear: there was no evidence that practices of forced labour in Myanmar were diminishing. Forced labour continued to be exacted on the population by the military rulers of the country. The picture set forth in documents D.6 and D7 was not positive, as it indicated that cooperation with the ILO was restrained. The lack of response by the Government to this case called the authority of this Committee into question. The facts of this case could not be ignored for political or economic reasons.

The Worker members also said that they were extremely disappointed with the statements made by the representative of the Government of Myanmar regarding a situation that was, to all intents and purposes, clear. It would therefore be counter-productive to continue waiting, since the Government would take no concrete measures. Like the Employer members and most of the Governments, the Worker members asked the Government to take action without delay. They also requested that their concrete proposals be considered in the conclusions. Their proposals, which were not punitive measures, aimed to direct the economy and the labour situation in Myanmar towards the observance of ILO standards. It was therefore appropriate to reactivate the measures taken under article 33 of the Constitution.

Not reproduced:

Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29) by Myanmar

Document D.6

Report of the Director-General

Report of the Liaison Officer a.i.

Document D.7

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

1. Document GB.291/5/1

2. Document GB.291/5/1(Add.)

3. Document GB.291/5/2

4. Document GB.291/7/1

5. Document GB.291/7/2

6. Document GB.291/7/2(Add.)

7. Document GB.291/7/3

8. Conclusions of the Governing Body at its 292nd Session (March 2005)

After taking note of the information from the Government representative, the Committee noted with grave concern the observation of the Committee of Experts which examined the measures taken by the Government to give effect to the recommendations of the Commission of Inquiry. The Committee of Experts had once again pointed out in its observation that the recommendations of the Commission of Inquiry had still not been implemented. The Committee of Experts and the vast majority of speakers in the Committee had expressed its strongest condemnation and urged the Government to demonstrate its stated determination to eliminate forced labour and to take the necessary measures to ensure compliance with the Convention. The extent of forced labour had not significantly changed in most areas, including ethnic areas, and its worst forms - including forced labour for the army and forced recruitment of child soldiers - continued.

In this regard, the Committee had taken note of the latest developments reported by the Director-General as well as by the Liaison Officer ad interim. The Committee welcomed the release of the third person in the high treason case, but regretted that he was not exonerated of the charges. The Committee could only deplore the fact that the Government had failed to demonstrate sufficient commitment to the elimination of forced labour, as reflected both by its treatment of the very High-Level Team (vHLT), and by its response to the concrete steps recommended by the vHLT and by the Governing Body. The Committee was alarmed in particular by the Government's stated intention to prosecute people it accuses of lodging false complaints of forced labour, and by the apparent intimidation of complainants.

In the view of the Committee, recent developments had further confirmed the conclusions of the Governing Body at its March 2005 session that the "wait-and-see" attitude that prevailed among most members since 2001 had lost its raison d'être and could not continue. The Committee's general view was that Governments, Employers and Workers, as well as other international organizations, should now activate and intensify the review of their relations with Myanmar that they were called upon to make under the 2000 resolution, and to urgently take the appropriate actions, including as regards foreign direct investment in all its various forms, relations with State- or military-owned enterprises in Myanmar. In accordance with the conclusions of the Governing Body in March, the present conclusions should be transmitted to all those to whom the 2000 resolution was addressed. The results of such reviews should be fully reported to the Director-General so that the Governing Body could have a complete picture in November. As regards the Economic and Social Council (ECOSOC), it should be requested to reactivate its consideration of the item placed on its agenda in 2001 in this regard, and Members in ECOSOC should be ready to support such a move.

The Committee noted that a number of serious issues, some of which were already identified by the vHLT in its aide-mémoire, needed to be urgently resolved:

1. The Government should give clear assurances that no action would be taken against persons lodging complaints of forced labour, or their representatives, in order that the Liaison Officer a.i. could fully continue to accept and channel such complaints to the competent authorities, and urgent discussions should be undertaken with a view to making available the safeguards and protection built into the Facilitator mechanism.

2. A number of serious allegations of forced labour that were still outstanding, including those concerning the army, should be resolved in a credible manner.

3. The ILO's presence in Myanmar should be strengthened to enhance its capacity to carry out all its various functions, and the Government should issue the necessary visas without delay.

4. The freedom of movement of the Liaison Officer a.i. as recognized by the Understanding and necessary to the discharge of his functions should be fully respected.

The Committee was of the view that the test of the real commitment of the authorities was and still remained their willingness to urgently discuss the outstanding issues at the highest level and to commit to a substantive policy dialogue that can finally address the forced labour problem. This commitment should moreover be reflected in changes to the law as well as in any future Constitution. Depending on developments in this regard, the general view was that the Governing Body at its next session should not limit itself to reviewing the steps taken under the 2000 resolution, but should also be ready to consider further steps.

Not reproduced:

Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29) by Myanmar

Document D.6

Report of the Director-General

Report of the Liaison Officer a.i.

Document D.7

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

1. Document GB.291/5/1

2. Document GB.291/5/1(Add.)

3. Document GB.291/5/2

4. Document GB.291/7/1

5. Document GB.291/7/2

6. Document GB.291/7/2(Add.)

7. Document GB.291/7/3

8. Conclusions of the Governing Body at its 292nd Session (March 2005)

Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

A. RECORD OF THE DISCUSSION IN THE COMMITTEE ON THE APPLICATION OF STANDARDS

A Government representative of Myanmar informed the Committee that the Supreme Court of the Union of Myanmar had revised and commuted the death sentences on the three individuals as follows: (1) the sentence on Shwe Mann (a) Zeyar Oo had been commuted to transportation for life under section 122(1) of the Myanmar Penal Code; (2) the sentence on Min Kyi (a) Naing Min Kyi had been commuted to three years' imprisonment under section 123 of the Myanmar Penal Code; and (3) the sentence on Aye Myint (a) Myint Aye Maung had been commuted to three years' imprisonment under section 123 of the Myanmar Penal Code. It should be noted that not only those three individuals but also the remaining six persons had received commutations of their sentences. Out of the nine individuals, four received commutations to three years' imprisonment and five received commutations to transportation for life. He recalled the content of his letter dated 3 June 2004, addressed to the Director-General of the International Labour Office, which had been distributed in document C. App/D.5(Add 2).

With regard to the Facilitator, the speaker said that, although the joint Plan of Action was not yet in force, the Myanmar authorities, on their part, were already implementing it in good faith. For instance, the Myanmar authorities had recognized the Facilitator designated by the ILO, as provided for in the joint Plan of Action, and had been cooperating with him in the performance of his duties. In this context, it is also relevant to note paragraph 10 of the report (GB.289/8/1) of the Special Adviser to the ILO Director-General who visited Myanmar from 3 to 8 March 2004. The mechanism of the Facilitator was a new concept. The terms of reference for the Facilitator had been clearly set out in the joint Plan of Action and the mechanism was already functioning effectively.

The speaker then referred to other measures taken by his Government. These included field observation teams. The seven field observation teams (FOT), headed by the Directors-General and heads of departments under the Ministry of Labour, continued to undertake field observation trips to various parts of the country. These teams oversaw the implementation measures in the field and carried out investigations into the allegations of the use of forced labour whenever they occurred. Their findings were submitted to the Convention No. 29 Implementation Committee for appropriate and necessary actions. The Ministry of Labour, under close supervision of the Convention No. 29 Implementation Committee and in collaboration with the ILO Liaison Officer a.i., compiled these findings and actions and submitted them to the Director-General of the ILO and the Committee of Experts on a regular basis. He also noted that the ILO Liaison Officer a.i. was enjoying freedom of movement in the country. The ILO Liaison Officer a.i. travelled through the length and breadth of Myanmar including remote areas such as the Chin Hills, Kachin State and Kayah State.

The speaker also pointed to the holding of a workshop on the implementation of Convention No. 29. A total of 120 participants in the workshop included: responsible officials from the peace and development councils at the division, district, township and village tract levels; high officials from various government departments; and representatives from NGOs. The subjects discussed included, inter alia: cooperation between Myanmar and the ILO; Order No. 1/99 and the Order Supplementing Order No. 1/99; Criminal Procedure Code; rights of Myanmar nationals; the role of the police force in the eradication of forced labour; and complaints within the region. The workshop proved to be very useful. There were plans to organize more similar workshops and seminars.

The Myanmar judiciary and the ministries and departments concerned were also taking necessary enforcement measures and legal actions whenever there appear prima facie cases with sufficient evidence. One significant development was the legal proceedings under section 374 of the Myanmar Penal Code in respect of two defendants for their alleged use of forced labour in Htanmanaing Village, Kawhmu township. In the past, a number of representatives, including the Worker members, insisted on the need to invoke section 374 of the Myanmar Penal Code. This was the first case prosecuted under section 374. Necessary actions were also being taken against those found guilty of infringing Order No 1/99 and the Order Supplementing Order No. 1/99.

The speaker then turned to Myanmar's observance of Convention No. 87. He noted that the National Convention, which had been entrusted with the drafting of a new state Constitution, was currently in session. He concluded by stating that the aforementioned measures bore testimony to the determination, dedication and commitment of the Myanmar authorities to the eradication of forced labour in the country. He wished to make it clear, once again, that no linkage between the ILO issue and politics or the internal situation in the country could be accepted.

The Worker members stated that yet another special session on the Forced Labour Convention, 1930 (No. 29), was being devoted to addressing the issue of forced labour in Myanmar. Several years ago, the Commission of Inquiry had already made the following specific recommendations to the Government: (a) to modify the laws relating to forced labour; (b) to terminate forced labour practices, particularly those imposed by the military; and (c) to apply effective criminal sanctions in cases of forced labour. The Committee of Experts had noted that the laws dating from 1907 were never modified, as recommended by the Commission of Inquiry. In this regard, the Government continued to claim that the Orders of 1999 had amended the laws in question. Then, why not modify the laws of 1907 themselves if the Government had already indicated that these laws were no longer applicable? Concerning the second recommendation of the Commission of Inquiry, the Government had not undertaken any of the four types of measures which were requested with a view to terminating forced labour practices. Hence the Government had not provided the relevant copies of the concrete specific instructions addressed to local authorities and the military; nor had the Government provided any definitions of forced labour or indicated how work in the country could be carried out otherwise than through forced labour. Apparently, no instructions had been provided to the military and nothing showed that the translation of the instructions in the local languages had been effectively disseminated. Moreover, if budgetary allocations had been made, they had not been used to envisage the carrying out of the necessary work in the country through other means. Strangely enough, all the investigations carried out by Convention No. 29 Implementation Committee had led nowhere. Concerning the third recommendation, it was observed that no sanctions had been imposed against the perpetrators of forced labour practices even where a complaint was lodged for the first time before a judiciary body. They concluded that the situation of Myanmar continued to be extremely serious and worrying particularly in the periphery and ethnic parts of the country where there was a strong military presence. Hence the overall situation was very depressing and affected a significant number of people. The Worker members emphasized the importance of continuing the Committee discussion in addition to the Governing Body discussion that had tended to focus more on procedural matters rather than substance until substantial progress could be demonstrated toward the complete elimination of forced labour in Burma.

This was the fourth year in a row that this case was discussed in a special session in accordance with the ILC resolution under article 33 of the ILO Constitution. Last year, the discussion of the then recently concluded agreement on a Plan of Action was coloured by the attack on Aung San Suu Kyi by forces associated with the military regime only days before the International Labour Conference began. Scores of her supporters were massacred, Daw Suu and many of her supporters were arrested and remained in detention to date, and all activities of the National League for Democracy (NLD) were suspended. Since the climate of fear and repression resulting from the massacre raised substantial concerns about the ability to implement the newly agreed Plan of Action, especially the work of the Facilitator that depended on the confidence of victims of forced labour to come to him as well as the Liaison Officer without fear of reprisal from the regime, this Committee concluded that it was not possible to begin implementation of the Plan of Action at that time. The Governing Body reviewed the situation not only at its November session but also once again at its session in March. On both occasions the Governing Body decided that the climate inside the country was not conducive for the implementation of the Plan of Action.

The Worker members recalled that the Governing Body in March asked this Committee to review developments under the circumstances and that the conclusions reached by the Governing Body "are of course without prejudice to the views expressed by some that the lack of substantive progress would call for reactivation of the review of relations between the ILO constituents and Myanmar under article 33 of the Constitution". The Governing Body in March expressed three fundamental concerns about the sentencing to death of nine persons for high treason, in particular Shwe Mahn, Naing Min Kyi and Aye Myint. It should be emphasized that the Facilitator designated by the ILO was of the opinion that "the matter had not been dealt with in accordance with an appropriate and credible procedure, and that the charge of high treason was unfounded and needed to be reviewed". The first concern expressed by the Governing Body in March was that contacts or exchange of information with the ILO could in any way have judicial consequences in Burma. The second concern focused on whether contacts with "third parties" on matters of concern to the ILO could similarly be punished. And the third concern raised the issue as to whether, in light of the court decision, the Plan of Action and more specifically the Facilitator mechanism could be credibly implemented.

The Committee took note of two letters that had been sent to the Minister of Labour since the March session of the Governing Body - one from the Liaison Officer and one from the ILO Director-General himself. These letters could be found in document D.5. There was also the letter sent by the Ambassador only a couple of days ago that appeared to be in response to the Director-General's letter of 2 June. In this letter, the Ambassador indicated: firstly, that the three defendants somehow had the right for a second appeal to the Supreme Court; secondly, that the lower court inadvertently and incorrectly made reference to the ILO in its original decision; and, thirdly, that under no circumstances did contact or cooperation with the ILO constitute an offence under existing law. They also recalled that this year's discussion was taking place under a similar pall as last year's discussion. Aung San Suu Kyi remained under house arrest and was virtually incommunicado. None other than the UN Special Rapporteur on Human Rights in Burma/Myanmar, who had been refused a visa to enter the country, had called the Constitutional National Convention now taking place at a secure location outside Rangoon "an enormous effort for a meaningless and undemocratic exercise". He had accused the Government of condemning the carefully selected 1,088 people attending the convention to house arrest and publicly stated that the democratic transition would be impossible unless Myanmar's generals eased curbs on free, open discussion at the convention. The ethnic groups agreeing to a ceasefire participating in the convention were already making demands about fundamental changes in the documents drafted nearly a decade ago and now being dusted off for this National Convention or they would walk out.

The Worker members stated that the spirit of cooperation contained in the Government representative's remarks stood in stark contrast to what was happening inside Burma today which could only be described as a victory by those inside the military most resistant to reform of any kind. To the ILO the face of the Government was a civilian diplomat, but to the Burmese people the face of the regime was the soldier with his gun. In view of the above, they turned to four points in reaction to recent developments. First, the Worker members fully supported the view expressed by the Facilitator designated by the ILO that the convictions of Shwe Mahn, Naing Min Kyi and Aye Myint were unfounded. Their only alleged crime appeared to be their association with pro-democracy groups opposed to the regime, particularly the Federation of Trade Unions of Burma. On account of this association, they had been labelled terrorists and convicted of high treason. While they were relieved that the sentences for Naing Min Kyi and Aye Myint had been reduced, they demanded the immediate release of all three. They further demanded the release of the other six defendants, five of whom continued to face prison sentences. They hoped that this second review by the Supreme Court was completed in due haste and the defendants were exonerated. Second, regarding the matter of whether contact and cooperation with the ILO constituted a crime in Burma, the Government representative's assurances contained in his letter of 4 June, whilst appreciated, were insufficient. They hoped that any second judgement by the Supreme Court would make it absolutely clear that contact with the ILO was not a crime and should in fact be encouraged. This had to be clearly communicated throughout the country in all the appropriate languages. Third, clarity also needed to be brought to the issue of contact with third parties on matters of concern to the ILO. Court decisions made it clear that what was meant by third party is the Federation of Trade Unions of Burma and its Secretary-General, Mr. Maung Maung, who had addressed the Committee earlier and who had been convicted in absentia of high treason. Without such clarity, the implementation of the Plan of Action, especially the work of the Facilitator, would be fundamentally compromised.

Given the current political climate inside the country, the Worker members did not believe that the Plan of Action could be effectively implemented at present. The speaker emphasized that the Worker members had reacted positively toward the Plan of Action, especially the facilitator framework, both in this Committee last year and in the Governing Body. They looked forward to the day when the climate existed for the Plan of Action to be tested to determine the degree to which it actually contributed to the elimination of forced labour in Burma. In this regard, they noted with interest the information provided in document D.5 concerning the activities of the Liaison Officer, specifically the fact that he had received 40 complaints thus far in 2004. They deplored the fact that the regime had admitted that only three of the 40 were the victims of forced labour and it did not appear that any action had been taken by the authorities to date. Nonetheless, they saw value in the work of the Liaison Officer and would be open to exploring ways to expand and make more effective such work if the circumstances emerged for such a consideration.

The Worker members recalled that the Commission of Inquiry report had noted that "all the information and evidence before the Commission shows the utter disregard by the authorities for the safety and health as well as the basic needs of the people performing forced or compulsory labour ... Forced labourers, including those sick or injured, are frequently beaten or otherwise physically abused by soldiers, resulting in serious injuries, some are killed, and women performing compulsory labour are raped or otherwise sexually abused by soldiers ...". The Worker members were compelled to emphasize that, despite the ongoing engagement between the Office and the Government, very little had improved concerning the widespread use of forced labour, particularly by the military, and on infrastructure projects. Confirmation of this was contained in the Experts' comments once again this year and supported by the continual flow of information coming out of Burma. Unless significant progress was made in the next couple of months toward the implementation of all three Commission of Inquiry recommendations, the Governing Body would have no choice but to direct the Director-General to strengthen his call under article 33 of the Constitution that all of the ILO's constituents should review their relations with Myanmar to ensure that such relations did not perpetuate or extend the system of forced or compulsory labour in that country.

The Employer members stated that the Government of Myanmar still refused to comply with obligations they had voluntarily accepted under international law. This increasing isolation was detrimental to their economy and their people and, if it continued, would lead to contempt by the international community. It was too early, however, for resignation. The Employer members recalled that the Committee's mandate was to examine the measures taken to implement the resolution adopted by the Conference in 2000 which, for its part, was based on the Committee of Experts' observation of 1998. They observed that there were still massive violations of Convention No. 29. The legal basis for these violations, the Village Act and the Towns Act, continued to be in force. The abolition of forced labour would only be possible if the Government was prepared to act. While the Government representative in his statement had indicated a willingness to act, documents D.5 and D.6 had shown that little progress was evident at all. They turned to specific issues regarding forced labour in the country. They noted that instructions issued by the military authorities banning forced labour needed to be disseminated and translated into local languages. The aforementioned Acts allowing forced labour needed to be abrogated. Furthermore, the pamphlet on forced labour mentioned in paragraph 14 of the Committee of Experts' observation still had to be drafted. Financial resources for development were also necessary to ensure the abolition of forced labour, since many projects depended on forced labour for their completion. Finally, he noted that sanctions for the use of forced labour existed only on paper and that no information had been received on their application in practice.

The Employer members noted the long history of this case and recalled the various missions that had led to the appointment of a Liaison Officer in Myanmar in May 2002. The Government only reacted slowly and under pressure. In spite of this, it was not even possible for the Liaison Officer to effectively examine allegations of forced labour brought to his attention, as indicated in document D.5. They further noted that new information had revealed that forced labour was also a problem in border regions and was practised in the context of military service. More specifically, there were allegations that young persons under the age of 18 years were being recruited for compulsory military training. They noted that, when the Government replied to such allegations, such responses were always received just before the Conference. Referring to the Plan of Action of May 2003, they noted that an independent facilitator was supposed to carry out duties mentioned in paragraphs 38-45 of this year's observation by the Committee of Experts. The commencement of the Plan of Action should be determined by the Director-General. Until now nothing had happened. They further noted that, in March 2004, the Governing Body had concluded that the conditions in Myanmar were not sufficiently convincing to proceed with the implementation of the Plan of Action.

The Employer members noted that there were some positive developments. The Liaison Officer had received a considerable number of complaints regarding forced labour, which he had transmitted to the Convention No. 29 Implementation Committee for investigation and action. These cases concerned, inter alia, instances of forced recruitment of persons under the age of 18 into the military service. Most of these cases had not yet been investigated. The Employer members drew special attention to the cases of nine persons sentenced to death for high treason, including three persons whose convictions were related to their contacts with the ILO. These sentences gave rise to the suspicion that contacts with third parties on matters of concern to the ILO constituted a basis for punishment. This had been confirmed by the letter of the Ambassador of Myanmar of 3 June 2004 addressed to the Director-General, in which the Ambassador referred to the judgement of 28 November 2003 and had indicated that contact and cooperation by a Myanmar citizen with the ILO did not constitute an offence under national law.

The Employer members concluded that the preliminary summary of this case gave rise to deep concern. The Plan of Action envisaged one year ago had not yet been implemented. Although the latter contained only some measures which would lead to a radical change of the situation, it would be a start. The implementation of the Plan of Action was also required in order to render the contacts between the ILO and the Government meaningful. More effective measures needed to be taken now. They further expressed their hope that the Government would not provide the latest information on developments only just before the beginning of the Conference.

The Government member of Indonesia, speaking on behalf of the ASEAN countries, expressed his appreciation to the Director-General of the ILO for his continuing support and cooperation with the Government of Myanmar in its efforts to eliminate the practice of forced labour in the country. He also acknowledged the role played by the ILO Liaison Officer a.i. in Myanmar, in assisting the Myanmar authorities in the observance of ILO Convention No. 29. His delegation welcomed the commitment of the Government of Myanmar to observing ILO Convention No. 29, and to eliminating the practice of forced labour in the country. He noted the agreement reached between the Myanmar Government and the ILO on 27 May 2003 on the joint Plan of Action and urged both sides to jointly implement it as soon as possible. In this connection, he welcomed the visit of the ILO Mission to Myanmar from 4 to 6 March 2004, led by the Special Adviser to the ILO Director-General. Myanmar and the ILO should proceed to implement the joint Plan of Action and continue their cooperation. He believed that a cooperative approach would enable the International Labour Conference to play a constructive role in this respect, and encouraged the Government of the Union of Myanmar and the ILO to continue amicable cooperation until the issue was completely resolved.

The Government member of Ireland spoke on behalf of the European Union. She indicated that the candidate countries Bulgaria, Romania and Turkey and the countries of the Stabilization and Association Process and potential EU candidates Albania, Bosnia and Herzegovina, Croatia, The former Yugoslav Republic of Macedonia, Serbia and Montenegro and the EFTA countries Iceland, Norway and Switzerland, had aligned themselves with her statement. The European Union (EU) wished to underline its support for and appreciation of the work of the International Labour Office and that of its former and current liaison officers in their work on forced labour in Burma/Myanmar. The speaker recalled that, in March, the Governing Body had concluded that while positive developments had occurred since November 2003, the court judgement against certain persons in relation to contacts or exchange of information with the ILO had undermined the credibility and prospects for future cooperation. Three separate concerns were identified in the Conclusions. The Office was to examine this question more thoroughly in light of the results of the review of the recent cases and any further assurances provided by the Government. It was to report on the results of this examination to the Officers of the Governing Body, with the proviso that the results should be found sufficiently convincing before proceeding to the implementation of the Plan of Action. The speaker said that the EU did not find the additional information provided sufficiently convincing to permit implementation of the Plan of Action.

The European Union was gravely concerned that the three persons whose conviction had an ILO connection continued to be imprisoned, one for a sentence equivalent to a term of life imprisonment. She was further concerned that they had not been granted access to their defence lawyer. It was now learned that they had been granted a second appeal, but that appeal should lead, at the very least, to a satisfactory outcome in the terms expressed in their letters by both the Director-General and the Ambassador of Burma/Myanmar. Only then could further steps be considered, be they positive or, if the results were disappointing, a further utilization of measures to ensure the respect of Convention No. 29 by Burma/Myanmar. The EU noted that the ILO Liaison Officer a.i. had continued with his activities, including discussions with the Minister for Labour and the Director-General of his department, and that he was able to travel to Chin State in a visit conducted independently of the authorities. The EU acknowledged that the ILO Liaison Officer a.i. was able to travel to all areas that he wished without any restrictions or escort, and was able to meet freely with a range of persons, as well as with members of the Chin State Peace and Development Council, including its secretary. However, she noted that, despite the increasing number of allegations received by the ILO Liaison Officer a.i., none brought to the attention of the Convention No. 29 Implementation Committee had been found by the Committee to be justified. The EU was concerned that the Committee had not found any cases of forced labour, since there was evidence of cases thereof. The EU shared the view of the Liaison Officer a.i. that if the official position of the Convention No. 29 Implementation Committee remained that the allegations were unfounded, this would inevitably cast doubt on the credibility of the Committee and its work.

The European Union was concerned and deeply disappointed that the authorities of Burma/Myanmar, despite previous assurances, had not released Daw Aung San Suu Kyi, or her deputy, U Tin Oo, and had not allowed the National League for Democracy (NLD) to reopen their offices. The EU regretted this failure by the authorities of Burma/Myanmar to create the conditions which would have allowed the NLD to take part in the National Convention. They were further concerned at the restrictions placed on participants in the National Convention. She regretted that this opportunity to begin a real process of national reconciliation and a peaceful transition to democracy had not been taken by the Burmese authorities. They were also concerned that the UN Special Rapporteur on Human Rights in Burma/Myanmar had not been able to gain entry. The EU reiterated its commitment to democratic change in Burma/Myanmar as well as ongoing humanitarian assistance to the people of Burma/Myanmar and remained committed to working with its Asian and other partners to that end.

The Government member of the United States stated that her Government had carefully studied the documentation prepared for the Committee on developments concerning the question of Burma's observance of Convention No. 29 on forced labour. She had also listened with great interest to the presentation made this morning by the Government of Burma. The inevitable conclusion was that forced labour continued in Burma. The Committee of Experts, in its current report, found that "while there may have been some decrease in forced labour since the report of the Commission of Inquiry in 1998, in particular for civil infrastructure work, forced labour continues to be exacted in many parts of the country". The ILO Liaison Officer a.i. provided additional credible evidence of the ongoing use of forced labour and the forced recruitment of children into the armed forces. Some Burmese individuals had demonstrated remarkable courage by contacting the ILO Liaison Office to report incidents of forced labour. Two individuals even filed a complaint in a Burmese Court under section 374 of the Burmese Penal Code - the first time this had happened. Still, the Burmese people lived in a climate of fear. Her Government was appalled to learn in March that three people were sentenced to death for contacting the ILO. The Governing Body was assured by the Burmese authorities that the cases would be reviewed. But the recent decision of the Supreme Court was merely to reduce the sentences. This was unacceptable. No one should be punished, and no one should fear punishment, for contacting the ILO. She urged the Burmese authorities to guarantee that the Supreme Court would review these cases, and that the three persons would have access to effective legal assistance in preparing their appeals. To do otherwise, as the Governing Body previously noted, would undermine the credibility and prospects for future cooperation. She agreed with the conclusion of the Officers of the Governing Body that the latest developments in the situation in Burma were not sufficiently convincing to proceed with the implementation of the Plan of Action. Indeed, she urged the ILO to defer signing the Plan of Action until the prospects for successful implementation had improved sufficiently. If the situation did not improve significantly - and soon - the November session of the Governing Body would need to consider reactivating measures under article 33 of the ILO Constitution. It was now almost 50 years since Burma committed "to suppress the use of forced or compulsory labour in all its forms" under the Forced Labour Convention, 1930 (No. 29). The Burmese authorities had to live up to their obligations and end this intolerable practice. Concrete actions that demonstrated resolve to implement the Commission of Inquiry's three recommendations were the only way in which the Plan of Action could go forward.

The Government member of Australia, speaking also on behalf of the Government of Canada, said that both countries' positions on forced labour in Burma were clearly on the record both at the ILO and in supporting United Nations resolutions on Burma. They acknowledged the role played by the ILO Liaison Officer a.i. in Yangon, particularly his efforts to assist the Burmese authorities to observe ILO Convention No. 29. Canada and Australia strongly supported the Plan of Action and they were deeply disappointed that no change at all seemed to have occurred in Burma since the International Labour Conference last June to eliminate the practice of forced labour. It was time for Burma to demonstrate its commitment to eliminating forced labour by cooperating fully with the ILO to implement the Plan of Action. He reaffirmed that, in principle, Australia and Canada favoured the signature of the Plan of Action. Canada and Australia remained convinced that urgent action was required to assist the citizens of Burma experiencing, or under threat of, forced labour. A basic element of the Plan of Action was that the people of Burma should be able to cooperate with the ILO with full confidence and without fear of retribution. They sought a clear commitment from the Burmese Government that contact with the ILO would not constitute a criminal offence. Until they were satisfied that this was the case, reluctantly, they could not endorse signature and implementation of the Plan of Action. Although it was not appropriate for this Committee to become involved in broader political debates, it should convey clearly to the Burmese Government that past events brought into question its intentions regarding implementation of the Plan of Action. Australia and Canada had made it clear on many occasions that all political detainees, including the Secretary-General of the NLD, Aung San Suu Kyi, should be released immediately and unconditionally. It was now more than 12 months since Aung San Suu Kyi was detained in Burma where she remained under house arrest. There was no justification for her continued detention and her release was a prerequisite for democratization in Burma as outlined in the Road Map. He called on Burma to implement the Road Map to democracy, including drafting a new constitution with broad participation and open debate. The National Convention which commenced on 17 May 2004 was not credible because it did not meet that test. It was up to the Burmese Government to create a climate to give parties confidence about their participation in the National Convention.

The Worker member of Malaysia said that no progress had been noted in this case since it began, despite yearly assurances by the Government of Myanmar to the contrary. He suggested that the Government representative travel to Myanmar to see the facts first hand, or that the military junta attend the next meeting of the Committee. Reports indicated that forced labour occurred every day. He pointed to mainly Muslim refugees who had appeared at the Malaysian border and who were fleeing forced labour practices. With regard to paragraph 28 of the Committee of Experts' comment on Myanmar and Convention No. 29, he pointed out that there was evidence that the army recruited persons under the age of 18. Turning to the topic of freedom of association, he urged the Myanmar Government to listen to its people and to make freedom of association a reality.

An observer representing the International Confederation of Free Trade Unions (ICFTU), speaking with the authorization of the Officers of the Committee, stated that he was the Secretary-General of the Federation of Trade Unions-Burma (FTUB), an independent workers' organization, working underground inside Burma and maintaining offices and training structures in neighbouring countries. As such, the FTUB received information concerning forced labour and other violations of fundamental workers' rights sent by Shwe Man, Min Kyi and Aye Myint, who had remained in jail in Burma since July 2003 and whose cases were amply described in the documents presented by the Office to the Committee. He assured that there was absolutely nothing subversive, revolutionary nor anti-State about this information. He held and would make available to the ILO a folder containing the reports sent to him since 2001 by his imprisoned colleagues. Far from constituting any grounds for a death sentence, or even one single day in jail, these documents provided undisputable evidence of forced labour, exploitation and extortion by Burma's military authorities.

This other document which he held was the latest forced labour report sent by the FTUB to the ICFTU less that three weeks ago, covering a period from September 2003 to April 2004. It contained details of at least 3,000 villagers forced to work on road construction, to deliver food to the army, to keep guard, to build military barracks, to provide building materials, to dig channels, to provide boats, trucks, bullocks and even elephants, to plough fields for the army or to pay cash in exchange for labour they could not perform. In Tan-tabin township, last December, Tactical Commander Khin Soe ordered 254 villagers from Baw-gali to clear undergrowth and landmines along the road. In Lashee township, in Sagaing Division, over 900 households had to provide labourers to construct a road between 18 and 24 April 2004. They had to crush gravel, chop down trees, remove heavy rocks and construct a bridge. The FTUB's report was supported by 17 forced labour orders, all of which were identical in content and shape to the thousands of orders which they had supplied over the years to the ILO and which had been found by the Committee of Experts to be authentic. They were issued in Sagaing Division, in Pegu Division, in Karen State and in many other places; they contained dates, locations, battalion numbers, names and rank of army officers and descriptions of civilian authorities.

The continuation of forced labour in Arakan State was confirmed by Forum Asia, a human rights NGO based in Bangkok, and whose reports on Burma were well known to the ILO. Its latest report, dated 1 June, gave details of forced labour on a road construction project to link South Maungdaw with Rathedaung township. While the work initially started with the use of an army bulldozer, it stopped for a few months when the bulldozer reached a rocky hill in the Manyu mountain range. It resumed in March this year with forced labourers taken from five village tracts in the area. Two forced labourers had already died on this road project, in March and in April, when they were hit by rocks falling from the cliffs. This clearly demonstrated not only that the army still very much used forced labour, but also that it did so on major infrastructure projects, contrary to assurances given by the junta to the international community. It should be noted, however, that forced labour had stopped in the area for a while in 2002 and 2003, but resumed when an army battalion was deployed in the area. In other words, forced labour was still very much imposed at will by the army, according to the whims and decisions of local commanders over which central authorities seemed unwilling or unable to impose effective control.

The FTUB, the workers and the people of Burma were grateful to the ILO for its efforts on the ground to eliminate forced labour. They were encouraged by the opening of the Rangoon Office, and thought that at least two new ILO offices should be opened, one in Upper Burma, and one in southern Burma for all people of rural areas to have access to the ILO. They were very concerned, however, by the fact that, over the last few weeks, many people wanting to report cases of forced labour to the ILO had been turned away by security officials from the Rangoon hotel where the office was located. He called for the assurances made by the authorities that contact with the ILO was not a crime to be announced publicly, including in ethnic languages and by all technical means used in this regard, such as radio and television. The same assurances should be given as concerned the right of Burmese workers to contact independent trade union organizations, including the FTUB. These requirements, as well as the need for the immediate and unconditional release of the detainees sentenced last November on charges of high treason, were the minimum prerequisites for further ILO initiative or action in the country, such as the implementation of the Plan of Action. Failing genuine and measurable progress, the ILO should implement the actions and measures foreseen by the 2000 resolution adopted by the International Labour Conference under article 33 of the Constitution.

The Worker member of the Netherlands stated that he had two observations to make in order to review certain points that he had made last year during the special sitting on Myanmar. The first point concerned the OECD Guidelines for Multinational Enterprises as an instrument to help governments, employers and trade unions to make a contribution to the elimination of forced labour. He considered that in the past year, this instrument, which was not binding, had lost a great deal of its potential as a consequence of a decision by the OECD member States to limit the scope of its application to direct investments and to exceptional cases, to be decided on an ad hoc basis, dealing with investment related trade. Governments had taken this decision while complaint procedures against companies with economic activities in Burma other than direct investment, for instance, travel agencies, were well under way in the Netherlands, and had been considered as receivable by the National Contact Point. Earlier this year, the Government had told the travel agencies that it would prefer them to discontinue organizing trips to Burma and that it would take certain measures vis-à-vis their customers if they would choose to ignore the Government's policy of discouraging business with Burma, which gave the trade unions at least some satisfaction. Quite a few travel agencies had meanwhile indeed stopped their activities in Burma as a result of the campaign by NGOs and trade unions, but some continued. In addition to this, the trade unions had been successful in one case addressed under the OECD Guidelines in their efforts to change the behaviour of a major Dutch investor in Burma, namely, the dredging, shipbuilding and engineering company IHC CALAND, which did business in Burma jointly with Premier Oil Inc., and since September of last year with its successor in the joint venture, Petronas of Malaysia. After two years of discussions, the Dutch company had decided to change its policies, pledged not to engage in further investments (while maintaining to serve their contractual obligations in the earlier concluded joint ventures), and expressed concern about forced labour in that country. At the request of the Dutch trade union confederations FNV and CNV, the company in question had also addressed Petronas Malaysia, urging it to respect the OECD guidelines and rules on forced labour, something which the Malaysian company had recently promised to do.

The speaker continued with his second point which concerned the follow-up to the 2000 resolution on Myanmar under article 33 of the ILO Constitution. He recalled that last year he had pleaded for a new reporting round on the implementation of the resolution which would have given a picture of the way in which the ILO constituents indeed had reviewed their relations with Burma. In fact, the Committee did not have any information in this respect as the first reporting round had been carried out just a few months after the adoption of the resolution and the time span covered was so short that one could not have realistically expected that policies of Government, employers and trade unions had, by then, already changed. By now, however, the Committee should be able to examine the impact that the resolution had had in practice in terms of compliance by those who had adopted it. He wondered whether the phrase "reactivating the resolution" meant that there was a tacit understanding that nobody should for the time being implement it and that the ILO should be silent about it. If that was the case, then he found it disappointing that in a field where the ILO had a strong and well-deserved reputation, i.e. careful monitoring of policy implementation, it should have acted with such lack of transparency and in such a hesitant manner. He therefore repeated his strong plea for a follow-up of the resolution in terms of regular reporting on its application in practice by the tripartite constituents of the Organization.

The Worker member of Japan, speaking on behalf of the Japanese Trade Union Confederation-RENGO, observed that in spite of the promises made by the Government of Burma, forced labour was still exacted widely in Burma as the Committee of Experts pointed out in its report. Noting the large efforts that the ILO had made to eliminate forced labour in Burma, he expressed the hope that the Government would take the necessary steps to make it possible for the joint Plan of Action to be implemented as soon as possible. He recalled that the 2000 resolution on Myanmar, adopted under article 33 of the ILO Constitution, called upon ILO member States to revise their relations with the Government of Burma and asked all parties not to give any advantage to the Government of Burma. He expressed the view that this resolution would be effective in practice if all member States could get together to put pressure on Burma, while recognizing that, at the same time, the international community should give the necessary assistance to the country to eradicate forced labour. In this respect, he regretted to observe that a few countries and some multinational companies supported financially and politically the Government of Burma. Although he did not deny that international investment could open societies and bring democratic changes, he emphasized that this was not the case in Burma. For instance, domestic law required that foreign direct investment (FDI) be carried out through joint ventures with the military regime, so that fees and benefits from investment went straight to the generals. He noted that according to the Union of Myanmar Economic Holding Annual Report 1990-2002, which was fully owned by the Burmese military regime, FDI had been growing significantly, and that most top investors in Burma were ASEAN countries such as Singapore, Thailand, Malaysia and Indonesia. One-third of total FDI was for the oil and gas sectors. Major countries with FDI in Burma from 1990 to 2002 were Singapore, the United Kingdom, Thailand, Malaysia, France and Japan. The leading companies in the oil and gas sectors were: (1) the Daewoo Corporation from Korea; (2) TotalFinaElf; (3) Uncoal from the United States; (4) Petroleum Inc. from Canada; and (5) TG World Energy Ltd. from Canada. Most importantly, investment was increasing rapidly even after the adoption of the ILO resolution in 2000. There was no doubt that this kind of support helped the military regime to continue to survive and oppress the people of Burma and ultimately led to having forced labour in Burma. In conclusion, he urged the representatives of the governments and the employers of these countries to stop giving any advantage to the military regime, as this was the shortest and most effective way to stop forced labour in Burma.

The Worker member of Italy observed that despite the promises made by the Burmese military regime in past years, the situation concerning the widespread violations of the Convention was not really improving and it was now urgent to assess the consistency of the Government. Although some measures had been taken, they were rather superficial, and did not really address the heart of the problem. The recent high treason cases before the Supreme Court concerning nine persons sadly provided support for this dark assessment. While after the Governing Body session of March the death penalty had been commuted by the Supreme Court, all persons convicted of high treason for having merely contacted a trade union remained in prison and should be immediately released while their criminal penalties, including the euphemistic penalty of "rigorous labour", should be cancelled as a prerequisite to any other action. The speaker further observed that the main points identified by the Commission of Inquiry had not been implemented. For instance, the Village Act and the Towns Act had not been amended, although Order No. 1/99 and its supplementing Order had been adopted and could be used as a legal basis to eliminate forced labour under the condition of being strictly applied. Concrete instructions to stop forced labour as requested by the Committee of Experts for a number of years had not been issued and nothing justified this delay on the part of the Government. The only point where admittedly some measures had been taken concerned the publicity given to the Orders even though its efficiency was close to nothing. She emphasized that only if people were aware that forced labour was a crime would they have the courage to resist, and that extensive publicity measures should target the population, the civilian authorities and the military. However, no publicity measures seemed to have been taken yet with regard to the military, while the Convention No. 29 Implementation Committee had not reached the civilian authorities in all 16 states and divisions and a huge amount of people in Burma had never heard about the Orders.

The speaker also emphasized the fundamental urgency of shifting the nowadays huge budget allocated for the army and weapons to the elimination of forced labour and the promotion of fair social conditions. As regards the monitoring mechanism, she noted that the dialogue between the Convention No. 29 Implementation Committee and the ILO Liaison Officer should be used so as to bring more rapid and concrete results, for instance, by establishing after each meeting a list of the tasks undertaken and the persons responsible for their implementation, so that developments could be better assessed by the Governing Body. In addition to this, she considered that the investigating methods of the Implementation Committee were clearly not appropriate and expressed serious concern at the fact that all the allegations of forced labour transmitted by the ILO Liaison Officer for investigation had been either found baseless or not followed by an investigation. The Government needed to understand that the rule of law required not only the establishment of machinery but guarantees of fair, transparent and effective procedures, which was far from the case. As for the issue of enforcement, she recalled that, although the Commission of Inquiry had urged the Government to take the necessary steps to ensure that the penalties which might be imposed under section 374 of the Penal Code for the exaction of forced labour be strictly enforced, to date no sanction had ever been imposed and no complaint had ever been filed, except for the two recently reported cases by the ILO Liaison Officer. This was not an indication that there was no forced labour, but rather evidence that the machinery did not have the confidence of the victims. She found it encouraging, however, that the presence of the ILO Liaison Officer somewhat compensated for this serious defect, since he had reported that he had received detailed allegations from victims of forced labour. In this regard, she noted that the situation concerning the interim nature of the Liaison Officer should be overcome by creating, even in the absence of the Plan of Action, a Liaison Office strong in terms of human resources and means, headed in such a way as to separate, on the one hand, the political relations with the national authorities and, on the other hand, the practical work to be carried out in the field, the follow-up action and the evaluation. She concluded by suggesting that between now and November the structure of the ILO Liaison Office be enlarged in the field, starting with Mandalay and the southern town of Moulmein.

The Government member of New Zealand recalled that her Government had repeatedly called on the Government of Myanmar to set in place the conditions through which the abhorrent practice of forced labour could be eliminated from the country and reaffirmed her Government's strong support for the joint Plan of Action which offered a worthy path forward. She recalled that last year, this special sitting had expressed its grave concern at developments in Myanmar that stood in the way of the implementation of the Plan of Action and that over the past year the Governing Body had twice echoed these concerns, citing further worrying cases that ran counter to the objectives of the Plan of Action. She expressed her Government's appreciation at some action that had been taken to address in part some specific cases, but also conveyed her Government's dismay at the few, if any, signs of progress or political will to take concrete actions so as to create the conditions under which the Plan of Action could be implemented. She emphasized that her Government remained deeply concerned at the situation in Myanmar, including the continued detention of political prisoners, restrictions of the right to freedom of opinion and expression and freedom of association, and that this deplorable practice had continued far too long. She concluded by saying that there were still numerous concrete measures that could be taken by the Government of Myanmar even outside the Plan of Action in order to remove these practices, and that higher priority should be accorded to making substantive progress in this respect.

The Government member of Sri Lanka welcomed the efforts made by the Government of Myanmar in cooperation with the ILO towards the elimination of forced labour. The Myanmar authorities had revised and commuted the sentences passed on citizens to lighter sentences in response to the views and concerns expressed by the ILO Governing Body. He encouraged Myanmar and the ILO to continue to work together with a view to a final resolution of this issue and the removal of measures taken against Myanmar by the International Labour Conference.

The Worker member of Burundi addressed two forms of forced labour still practised in Burma: forced recruitment of children into the army and forced use of workers as "human minesweepers". He illustrated these widespread practices with two examples: first, on 6 May 2004 a young boy of 16 years old named Wai Zim was arrested near his family dwelling in the borough of Hlaing Thaya. He was a young deserter from the light infantry battalion No. 215. He was recruited by force in December 2003, at the age of 13, and his name had been changed by the army to make it more difficult for his parents to find him. There was a double irony in his arrest for desertion last month. On the one hand, his arrest order indicated that he had to be arrested with a view to be officially dismissed from the army. On the other hand, his arrest order was signed by Lieutenant-General Tayn Sayn, who was also a Secretary of the Governmental Committee for Prevention of Use of Children Soldiers. The boy, Wai Zim, was one of 70,000 child soldiers actually used by force by the Burmese army. Second, the use of "human minesweepers" by the Burmese army was a practice which was well known to the ILO and this Committee. It was still very widely used at present. Thus, during the military offensive against the rebels of the State of Karen in October 2003, at least 300 persons were forced to work as porters and "human minesweepers". At least three of them died, torn into pieces by mines on which they put their feet. In conclusion, the speaker hoped that the Committee would consider it to be its duty to severely condemn these disgusting practices of the Burmese army.

The Employer member of India observed that the issue of Myanmar continued to be in the spotlight despite the time that had elapsed since the report of the Commission of Inquiry and the historic invocation of article 33 of the ILO Constitution. He emphasized that the purpose of this Committee should be not only to punish any guilty parties but also to ensure that ILO action became effective and yielded definitive results. He therefore had a few suggestions to make on how to improve ILO effectiveness in this respect. First, the joint Plan of Action should be made unconditional and should not depend on meeting prior conditions for its effective implementation. This would lead to a vicious circle whereby the situation would not improve precisely because the Plan of Action had not gone ahead. Second, technical cooperation programmes should be multiplied so that awareness could be raised in the country, especially through massive education programmes. Third, although the supervision and monitoring of the situation should continue, this Committee should not hold a special sitting on this case every year, but rather every two or three years after the ILO took action in the country and the situation had drastically improved.

The Government member of India stated that his delegation had carefully noted the information provided by the Office, particularly on the events that had taken place since the question of the observance by Myanmar of Convention No. 29 had been examined by the Governing Body in March this year, when positive developments had been noted and the Myanmar authorities had demonstrated an openness to cooperate. The Government member considered that the initialling of the joint Plan of Action in May last year was an important step which marked a new beginning in the process of cooperation between the ILO and the Myanmar authorities. He urged both sides to move forward towards implementing this Plan of Action, and noted with satisfaction that the two parties had been holding consultations on steps that needed to be taken towards its implementation, in particular the fact that the ILO Liaison Officer had been able to travel to several areas as he wished without any restriction or escort from 10 to 15 May, and had also been able to meet freely with a range of persons. He suggested that such developments needed to be viewed positively by the Committee as they conveyed the desire of both the ILO and the Government of Myanmar to improve the situation. He informed the Committee of his Government's view that Myanmar should be provided with adequate assistance to bring about the necessary changes without linking it to the internal political process in the country. Steps that had the potential of derailing this process had to be avoided.

The Government member of Japan emphasized the importance attached by his Government to the early and effective elimination of forced labour in Myanmar. He noted that this should be achieved by appropriate measures taken by the Government of Myanmar in line with the recommendations of the Commission of Inquiry, and expressed the hope that steady progress would be made towards this end through dialogue and cooperation between the ILO and Myanmar. He considered that the key to the implementation of the joint Plan of Action was to promote steady implementation of the facilitator activities and pilot projects, through which confidence between the ILO and the Government of Myanmar would be enhanced and further positive measures by Myanmar encouraged. Finally, he expressed the hope that progress would be made on various questions surrounding this issue.

The Government member of China stated that he had carefully listened to the opinions expressed from all sides during the discussion and expressed the hope that all of them would be put on record. He observed that Myanmar had been making efforts to improve the application of the Convention and expressed the hope that further cooperation and dialogue between the Government of Myanmar and the ILO would facilitate a rapid implementation of the joint Plan of Action.

The Government member of Bangladesh affirmed that forced labour anywhere and in any form should be eradicated and that no effort should be spared towards this objective. He expressed his appreciation to the ILO Director-General for the continuing cooperation between the ILO and Myanmar. He also expressed his appreciation for the work of the ILO Liaison Officer. He emphasized that the implementation of the joint Plan of Action was of critical importance and therefore urged both sides to make sincere efforts to this end. In this context, he called upon the Myanmar Government to extend the fullest possible cooperation to the ILO and invited the Office to remain constructively engaged with the Myanmar Government for an early resolution of this issue.

The Government member of Pakistan thanked the Government representative of Myanmar for the information he had provided on measures taken to address the issue of forced labour in his country. He retained in particular from this information that, for the first time in the country, the judiciary had reviewed and commuted sentences in response to the views and concerns expressed by an international organization. Thus, as promised during the last meeting of the Governing Body, the Appeals Court had reviewed the cases of nine defendants in its judgement of 12 May 2004. The Government member welcomed this development and considered that it should be appreciated. Moreover, he expressed satisfaction at the fact that the ILO Liaison Officer had been allowed to travel in the country and access all defendants. He finally called for providing further technical assistance to the Government of Myanmar in response to these welcome developments.

The Government representative of Myanmar stated that he would respond briefly to the points raised during the discussion. With regard to questions raised by a few members about the National Convention, he explained that Myanmar was a country in transition, striving to establish a modern, developed and democratic State. With this vision, the Prime Minister, General Khin Nyunt, had proclaimed on 30 August 2003 a seven-step Road Map which had been welcomed by countries in the region and beyond. The ninth ASEAN Summit and the seventh ASEAN+3 Summit, held in Bali in October 2003, had welcomed the Road Map as a pragmatic approach and an important programme. The first step of the Road Map, i.e. the reconvening of the National Convention, was being implemented. The National Convention was currently in session. On 20 May 2004, the National Convention had provided clarifications and conducted deliberations on the basic principles for the social sector, including the rights of workers. The deliberations also dealt with the basic principle of forming workers' organizations, a point to be discussed later on by this Committee.

With regard to questions raised about the criminal procedure and the legal proceedings in respect of three individuals whose conviction for high treason had an ILO dimension, he wished to emphasize that Myanmar had a very comprehensive and elaborate legal system and criminal procedural code. The Myanmar Penal Code, the Myanmar Criminal Procedure Code, the Evidence Act and the Myanmar Civil Procedure Code had been drawn up during the colonial years. Investigations, seizures and collection of evidence, legal proceedings and appeal procedures were carried out systematically in accordance with the aforementioned laws. Out of a total of nine individuals convicted of high treason in this case, five were found by the court to have been involved in criminal acts and four were found to be guilty of abetting the criminals. Their right to second appeal had already been explained during his first intervention.

With regard to the amendment of the Village Act and the Towns Act, he informed the Committee that his Government had been exploring ways and means to modify certain of their provisions and had consulted extensively with various parties in this respect. He added that his Government had promulgated Order No. 1/99 and its supplementary Order which had the force of law and, as the Committee of Experts had recognized, could provide a statutory basis for implementing Convention No. 29. This showed that the Government had taken the necessary steps to establish a sound statutory basis for the elimination of forced labour. He added with regard to comments made about the Penal Code that, as he had already mentioned earlier on, for the first time legal proceedings were under way based on article 374 of the Penal Code and that necessary action would be taken against those found guilty of violating the law. The Government representative protested against the abuse of the forum of the Standards Committee by Mr. Maung Maung and recalled that he had already delivered a letter concerning this matter to the Chairperson the previous day.

With regard to comments made by some members to the effect that progress in Myanmar's implementation measures and cooperation with the ILO was rather slow, he repeated that, in his view, steps taken by the Myanmar authorities, particularly in the past few months, had been at the very least prompt, timely and transparent. He added that the Government was doing its utmost to advance the process of cooperation with the ILO in its endeavours to implement the provisions of Convention No. 29. The Myanmar authorities were ahead of the formal signing and entry into force of the joint Plan of Action, as far as its implementation was concerned, by having already started to implement certain of its provisions. However, he emphasized that, given the delicate and sensitive nature of the issue and constraints, the Government had to adopt a step-by-step approach. This judicious and prudent approach did not mean that actions would be necessarily slow, but that progress should be achieved step by step and systematically. In conclusion, he observed that the process of dialogue and cooperation between Myanmar and the ILO had been working very well until now and he assured the Committee that the Government would continue this process of dialogue and cooperation.

The Employer members noted that, for the last four years, the Committee had been holding a serene discussion on a matter which could give rise to disquiet as it did not concern a minor matter but rather fundamental human rights. They observed that the Government had never denied the existence of forced labour in the country and had promised steps in numerous discussions on this issue. However, the effective implementation of these promises depended in the end on the Government itself. In this year's discussion, the Employer members had noted some progress but also some worrying steps backwards. For instance, the Government representative's statement that Order No. 1/99 and its supplementary Order had force of law could be seen as implying that there was no need for amending the Village and Towns Acts. Such an assertion would be very dubious since these Orders were in contradiction with older laws allowing and, indeed, calling for forced labour, which had to be repealed in order to clarify the state of the law. They also explained that the Conference had decided that the Committee would be examining this case every year in its resolution of 2000 which was binding upon the Committee. Turning to the conduct of other governments, the Employer members observed that the sanctions that had been adopted 16 years ago had not achieved any results and any adverse effect that they might have caused had been passed on to the people of Myanmar. It seemed that the governments did not have a clear plan as to what should be done in this respect. The Employer members therefore considered that the ILO should continue alone, in the absence of a strategic partner. They emphasized that the ILO had achieved remarkable results in this case but more needed to be done. The Plan of Action was a great achievement and its implementation was necessary. The Employer members expressed the hope that the Myanmar authorities would gain awareness of the fact that the abolition of forced labour would be to the benefit of all and, in particular, the country and its people.

The Worker members stated that they did not accept the criticism directed by the Government representative of Myanmar at Mr. Maung Maung's intervention. The debate confirmed the initial observations regarding the gravity of the situation in Myanmar and the continued non-observance by that Government of the recommendations of the Commission of Inquiry as well as the Committee of Experts. The practice of forced labour imposed on the population including in the domains of road construction, the use of child soldiers and civilians for mine detection, was extremely poignant and worrying. The recommendations of the Commission of Inquiry had, in the final analysis, to be respected and adhered to. The Burma Government had to: revise the laws covering certain crimes; define what it meant by "forced labour"; disseminate such a definition to the civil and military authorities as well as to the population at large; provide in its budgetary line the necessary funding allowing for the execution of needed work by means other than forced labour. Furthermore, the Convention No. 29. Implementation Committee established by the Government had to report on how it examined complaints presented. The Liaison Officer had also to be able to follow on the examination of complaints, submit cases to tribunals and propose solutions. These competencies were initially attributed to the Facilitator in the Action Plan established in the preceding year. However, the implementation of the aforementioned Plan of Action depended largely on the evolution of the political and legal situation in the country. In view of the above, the Worker members requested the Government to make an official declaration confirming that contact with the ILO or the possession of information provided by the ILO did not constitute a criminal offence. The Government was also requested to confirm that contact with third parties on matters of concern to the ILO would not be subject to punishment. Such a declaration by the Government was to be published and disseminated by appropriate means. The Worker members equally requested that the Supreme Court of Myanmar issue a judgement in due form on the status of the nine condemned persons and to immediately liberate the workers who were sentenced following their contact with the ILO and trade unions. The Government was also to clarify the notion of "transportation for life".

Finally, in order to create a political climate conducive to the implementation of the Plan of Action, the Government had to, as a priority, release Miss Aung San Suu Kyi; re-open the offices of the National League for Democracy and annul all the restrictions imposed on the National Convention participants. If the Government was non-responsive to the Worker members' requests before November, they intended to seize the Governing Body in order for the latter to stress the call previously made to member States on the basis of article 33 of the ILO Constitution.

Not reproduced:

Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29) by Myanmar

Documents D.5, D.5 (Add.) and D.5 (Add.2)

Brief summary of developments since June 2003

Latest developments since the 289th Session of the Governing Body (March 2004)

Appendices

Document D.6

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

1. Document GB.288/5

2. Document GB.288/5/1

3. Document GB.289/8

4. Documents GB.289/8/1 and GB.289/8/2

After taking note of the information provided by the Government representative, the Committee noted with deep concern the observation of the Committee of Experts which examined the measures taken by the Government to give effect to the recommendations of the Commission of Inquiry. The Committee of Experts had noted in its observation that the three main recommendations of the Commission of Inquiry were still to be implemented. In spite of the Government's assurances of its good intentions, the measures taken had not brought about significant progress in actual practice and forced labour continued to be exacted in many parts of the country. No person responsible for imposing forced labour had ever been prosecuted or sentenced under the relevant provision of the Penal Code. In view of the slowness of progress, the Committee of Experts had expressed the hope that the process of dialogue and cooperation which had developed between the ILO and the Government could offer a real chance of bringing about more rapid and concrete progress, in particular through the implementation of the Plan of Action.

In this regard the Committee had to note its grave concern at the fact that three persons had been convicted of high treason, including on grounds of contacts with the ILO. The Committee was further deeply concerned that although on appeal the Supreme Court had commuted the death sentences, it had failed to bring clarity on this crucial point, despite the earlier assurances of the Government that contacts with the ILO could not be considered illegal in Myanmar. The Committee also expressed its concern at the freedom of association issues raised by the Supreme Court's findings. It joined the Governing Body in endorsing the recommendations put forward by the informal facilitator as regards the grounds for convicting the three persons and the need to release them. It agreed that this situation clearly was not one in which the Plan of Action could be credibly implemented.

The Committee had also taken note of the information provided by the Liaison Officer ad interim on his activities. It noted with appreciation the continued cooperation extended to the Liaison Officer by the Government and the freedom of movement that he enjoyed. It considered the fact that individuals were lodging complaints concerning forced labour with the Liaison Officer in increasing numbers, demonstrating the usefulness of the ILO presence. However, the Committee had to note with concern that the response to the individual allegations so far raised was inadequate and that to date not a single one of these allegations had been verified by the authorities nor had anyone so far been prosecuted for illegally imposing forced labour. This cast serious doubt on the willingness of the authorities to take the concrete steps necessary to ensure the elimination of forced labour in practice.

In that respect, reference was made to the fact that certain forms of forced labour referred to by the Commission of Inquiry such as work on infrastructure projects, using forced labour, forced recruitment of children and even the use of persons as minesweepers were still in use. The dissemination of information in relevant languages also left much to be desired.

The Committee took due note of the assurances provided by the Government representative that a further review by the Supreme Court would take place which would, inter alia, clarify the question of the legality of contacts with the ILO. The Committee was of the opinion that the Government now had a final opportunity to give practical effect to these assurances and to the recommendations of the informal facilitator. It noted that the Governing Body at its next session should be ready to draw the appropriate conclusions, including reactivation and review of the measures and action taken including those regarding foreign direct investment, called for in the resolution of the International Labour Conference of 2000, unless there was a clear change in the situation in the meantime.

Finally, the Committee recalled that the Government would have to supply a detailed report for examination by the Committee of Experts at its next session on all the steps taken to ensure compliance with the Convention in law and in practice.

Not reproduced:

Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29) by Myanmar

Documents D.5, D.5 (Add.) and D.5 (Add.2)

Brief summary of developments since June 2003

Latest developments since the 289th Session of the Governing Body (March 2004)

Appendices

Document D.6

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

1. Document GB.288/5

2. Document GB.288/5/1

3. Document GB.289/8

4. Documents GB.289/8/1 and GB.289/8/2

Individual Case (CAS) - Discussion: 2003, Publication: 91st ILC session (2003)

A. RECORD OF THE DISCUSSION IN THE COMMITTEE ON THE APPLICATION OF STANDARDS.

A Government representative of Myanmar commended the Director-General on his strong and effective leadership and substantial contribution to the advancement of the dignity, decent work and welfare of workers. He stated that the ILO Liaison Officer had reflected in detail long and difficult negotiations leading to the successful conclusion of the joint Plan of Action for the elimination of forced labour in Myanmar. Her official activities until the end of May 2003 included, among other things, a meeting with General Khin Nyunt, First Secretary of the State Peace and Development Council in May 2003, which emphasized the importance attached by Myanmar to cooperation with the ILO. He noted that the Committee on the Application of Standards had before it a full and positive report on the ongoing cooperation between Myanmar and the ILO. The agreement between the Government and the ILO on the joint Plan of Action for the elimination of forced labour in the country was a breakthrough, a landmark agreement which was the outcome of a long process of continuous and intensive negotiations.

As he had said in the past, given the delicate and sensitive nature of the issue, a step-by-step approach had to be adopted in the endeavour to eliminate forced labour in the country. The Government was committed to the elimination of forced labour and, to this end, was taking the necessary measures in good faith with genuine goodwill and with the best of intentions. When the situation in 1999 was compared with today, no one could deny that a great deal of progress had been made. A comprehensive framework of legislative, administrative and executive measures existed in Myanmar. Order 1/99 and the Order Supplementing Order 1/99, issued in 2000, provided a statutory basis for the implementation of Convention No. 29. These Orders clearly stipulated that the requisition of forced labour was illegal and strictly forbade such acts. They also clearly set out the legal consequences for breach of these orders. It should also be noted that these Orders had the full force of law. Furthermore, necessary instructions had been issued to all ministries, including the Ministry of Defence, and all departments, and peace and development councils at the various levels. The administrative and executive measures taken by the Government included the establishment of the ministerial level ILO Affairs Working Committee, chaired by the Minister of Labour, and the ILO Convention No. 29 Implementation Committee, chaired by the Deputy Minister of Home Affairs. These bodies gave the necessary guidance and oversaw the implementation of Convention No. 29. Seven field observation teams were in full operation, making frequent visits to various parts of the country to oversee the implementation measures and the prevailing conditions on the ground. Close cooperation between the Government and the ILO dated back to 2000. Four technical cooperation missions had taken place in May and October 2000, May 2001 and February 2002. Moreover, an ILO High-Level Team (HLT) led by Sir Ninian Stephen, the former Governor-General of Australia, had visited the country in September-October 2001. The visits of these ILO teams had produced tangible results. The high point was the visit of the HLT, which had been a significant success. In its comprehensive report, the HLT had made a number of recommendations and suggestions for important steps, including some form of ILO presence, a plan of action for the elimination of forced labour in the country and a mechanism to receive complaints in accordance with the agreed procedure. The steps that were currently being taken in cooperation with the ILO stemmed from those recommendations and suggestions. An ILO Liaison Officer in the person of Mrs. Hong-Trang Perret-Nguyen, had assumed duties since October 2002 and had been functioning fully and effectively. An agreement had now been concluded with the ILO on the joint Plan of Action, which covered a wide range of actions for the elimination of forced labour, as recommended by the HLT. The Plan addressed, among other matters, the role of the Facilitator to receive complaints in accordance with the agreed procedure, a public information campaign, public awareness-raising programmes, the translation of the Orders into ethnic languages, the designation of the pilot project area of Myeik district, the pilot construction project in Myeik district, the expansion of animal transportation and the functions of the field observation teams. The joint Plan of Action covered a period of 18 months with effect from 1 July 2003.

In the past, some criticisms had been expressed that the Government had done "too little, too late" and that the measures it had adopted were only procedural and not substantive. The adoption of the joint Plan of Action refuted these criticisms. Informal consultations with the ILO on the Plan of Action had started in March 2003 following the 286th Session of the Governing Body and had been concluded within the time limit set by the Governing Body. Nobody could deny that the Plan was substantive, not procedural. Its conclusion marked a new phase of cooperation with the ILO. Its effective implementation would indeed be essential and no efforts would be spared in this respect. The Government remained committed and determined to further cooperate with the ILO to resolve the issue.

He expressed the hope that the goodwill and commitment of the Myanmar authorities would be reciprocated by the Conference and the present Committee and that, in the light of the substantial and substantive progress and major important steps taken by the authorities, the Committee would respond with a positive gesture with a view to being constructive, forward-looking and positive.

The Worker members emphasized that forced labour had been ravaging Myanmar for many years. Until very recently, and thanks to the efforts of the ILO, there had been hope of an improvement in the situation. However, for the past week they had been witnessing a deterioration in the progress accomplished until then. For the second time, this Committee was holding a special sitting on the case of Myanmar and the recent events were an additional reason for holding the sitting.

The Worker members recalled that the discussions of the Committee were based in the first place on the report of the Committee of Experts, supplemented by the information contained in documents D.5 and D.6. The violations of Convention No. 29 were grave, generalized, systematic and structured in law and in practice. The Government had been requested to implement the three recommendations of the Commission of Inquiry: (1) to amend the legislation in order to bring it into conformity with Convention No. 29 and thus abrogate all legislation which made forced labour possible; (2) to put an end in practice to the exaction of forced labour; and (3) to enforce the penalties provided for in the Penal Code against persons found guilty of having exacted forced labour. The conclusions of the Committee of Experts were clear.

Concerning the amendment of the legislation, the laws concerned had not yet been modified despite the repeated promises made by the Government for over 30 years. On this subject, the Government indicated that these laws were ancient and untouchable. But in 2001 and 2002 it had adopted and reformed other laws. Order 1/99 could constitute a sufficient legal basis to ensure the application of the Convention in practice provided that it was applied by the civil and military authorities. Concerning the exaction in practice of forced labour, the Worker members noted that the measures taken by the Government of Myanmar were not sufficient to put an end to such exactions, as indicated by numerous documents. On this subject, the Committee of Experts had stated in its report that the instructions given by the Government to the civil and military authorities were not sufficiently specific and concrete and that the Orders had not been publicized in a sufficiently general way in order to bring an end to the exaction of forced labour. Moreover, even if the Government had created a Committee for the supervision of the implementation of the legislation and had sent an observation team to the field in order to examine whether the population was aware of the Orders and verify whether any complaints had been lodged, no information had been provided as to the progress made up to now. Concerning penal sanctions, the Committee of Experts stated that the Government had not adopted any measures so that those responsible for the exaction of forced labour could be prosecuted. Thus, despite the Government's promises, none of the three recommendations of the Commission of Inquiry had been implemented in practice to this day.

Admittedly, following the efforts of the Office, certain changes had been observed. But these were principally, if not exclusively related to procedural issues. All the request of the Committee, the ILO had sent a High-Level Team in September 2001 to Myanmar and the border regions in order to evaluate the situation on the spot. On the basis of the report of the mission, the Governing Body had adopted conclusions, particularly for the Director-General to pursue the dialogue with the authorities in order to define the modalities and parameters of continued and effective ILO representation in Myanmar. Under the terms of a Memorandum of Understanding between the ILO and the Government of Myanmar, a Liaison Officer had been appointed in May 2002.

Documents D.5 and D.6 indicated the latest developments in Myanmar. A Plan of Action by the Government and the ILO for the elimination of forced labour practices in Myanmar had been finalized just in time for the beginning of the Conference, but too late for the recent dramatic events. In view of these events, the Worker members were sceptical as to the viability of the new agreements and initiatives between the Government and the ILO as the Government's attitude was proving to be misleading. In fact, despite the Government's indication that the elimination of forced labour would be its main objective, the fact remained that nothing had really changed. Before last week's events, the Workers could have been optimistic and have talked about progress. However, the current events, that is the detention and holding in secret of the executive of the National League for Democracy (NLD), and in particular Daw Aung San Suu Kyi, were a setback in that they resembled the events of 1995-97. Although political progress had been made over the past two years, these events cast doubt on the implementation of the Plan of Action.

The Worker members stated that they placed much hope in the visit to Myanmar of Mr. Razali, Special Envoy of Mr. Kofi Annan. The Governing Body had clearly recommended to the Government that it should take measures to abolish forced labour practices, ensure that those who exacted forced labour were brought to justice and modify the legal procedure so as to implement the required measures. The Worker members stated that, as long as the recommendations had not been implemented, the measures adopted under 33 of the Constitution of the ILO should not be revised.

The Worker members, also recalled that, according to the report of the Commission of Inquiry of 1998, the impunity with which government officials, in particular the military, treated the civilian population as an unlimited pool of unpaid forced labourers and servants at their disposal was part of a political system built on the use of force and intimidation to deny the people of Myanmar democracy and the rule of law, which were indispensable prerequisites for the suppression of forced labour. Moreover, they expressed concern at the deeply disturbing developments of the past week, which had a profound impact on the ability of the ILO to go forward in its cooperation with the Burmese Government. Contrary to what the regime had been saying, the growing body of information emerging from the country indicated that a massive crackdown of the NLD was under way, with killings, injuries and disappearances seeming to take place, not only in the area where Daw Aung San Suu Kyi had been ambushed, but also in many areas around the country. There was reliable information that Daw Aung San Suu Kyi had been injured and the fact that the authorities had not allowed the ICRC or her own doctor to see her was deeply disturbing. The discussion of forced labour over the past few years, both in this Committee and the Governing Body, had been conducted in the context of a climate of political reconciliation and it was no coincidence that the release of Daw Aung San Suu Kyi from house arrest and the beginning of confidence-building talks between the regime and the NLD had coincided with the adoption of the 33 resolution. However, the events of the past week cast a dark cloud over the discussion. If the Government wished to improve its credibility it should inform the Committee when Daw Aung San Suu Kyi would be released and be able to receive medical attention, the whereabouts of the missing NLD activists, when the brutal crackdown would end and if the process of political reconciliation would ever resume. Until these events ended, it was hard for the Worker members to see any way for the cooperation between the ILO and the regime to go forward.

Concerning the agreement tentatively reached between the Government and the ILO on a plan of action that included a formal understanding on a facilitator and a pilot project, he said that it was not surprising, given the long history of the case, that only a week before the start of this Conference, an agreement had been reached on the Plan of Action. The Committee had seen this pattern many times before. Only days before a Governing Body meeting or the beginning of the Conference, the Government came to some agreement with the ILO after months of delay and subterfuge, and then touted this agreement as a breakthrough. As the Committee of Experts had pointed out, there was no evidence that these agreements had led to any discernible decrease in forced labour. The Federation of Trade Unions of Burma had just released a report outlining 71 new cases of forced labour. Reputable international NGOs, such as EarthRights International and Forum Asia, had also released reports recently. Most importantly, the Liaison Officer herself had reported to the Governing Body that forced labour remained prevalent in many parts of the country, particularly in ethnic areas and in those areas with a substantial military presence. Although the Liaison Officer had reported allegations of forced labour to the Government, the latter had not confirmed any of these allegations. The Worker members had not forgotten the case of the seven Shan villagers who had allegedly been murdered for complaining about forced labour, a case which had been discussed on a number of occasions by the Governing Body and still remained pending. The Governing Body's suggestion for an independent investigation had been rejected outright by the Government. The fact remained that in villages, townships, and large areas of the country, forced labour was not only practised, but was a way of life for untold thousands of people.

The latest tentative agreement on a Plan of Action included seven work programmes dealing with various issues on the elimination of forced labour throughout the country, including the dissemination of information, awareness-raising programmes, the pilot project for local road construction, enhancing public awareness of the mechanism to make complaints and, of course, the role of the Facilitator. The Worker members' understanding was that, although the pilot project was envisioned as a concrete expression of the Government's political will to proactively eliminate forced labour, it was only a place to begin. They emphasized that this commitment by the Government to eliminate forced labour in practice had to apply to the country as a whole, and not just to the area of the pilot project. The Government was under an obligation to implement these programmes, especially the dissemination of information, awareness-raising and enhancing public awareness of the mechanism to make complaints everywhere and not just in the area of the pilot project. Similarly, it was clear that the role of the Facilitator to improve the access of the alleged victims of forced labour to the judicial process went beyond the area of the pilot project and extended throughout the country. It was important to emphasize that a fundamental objective of these activities was to increase the confidence of the people, and the victims of forced labour in particular, that legal redress was possible without recrimination. Until now there had been no confidence that a remedy was possible given the fact that the practice continued unabated, that the military was the primary perpetrator and that more often than not it had been the victims with the courage to complain who had been punished rather than those who were responsible. It had not gone unnoticed that there had been virtually no prosecutions. The Facilitator, in particular, would be asking victims to trust him so that he could help them gain legal redress. And the public-awareness campaign was a deliberate attempt to raise public expectations that something could and would be done. The Worker members asked the Government how any of this could happen under the current climate of fear and intimidation. Could the Facilitator in any way guarantee that those individuals who came to him would be safe after the appalling developments of the past week? Was it possible or ethical for the ILO to be raising public expectations in view of what had been happening? The answer to such questions was a resounding no. They could not envision any way for the implementation of the Plan of Action to begin without a return to some sense of normalcy, to a renewed and invigorated political reconciliation process.

Although the Worker members viewed the Plan of Action with a healthy dose of scepticism, they also noted it with interest. They looked forward to the day when the process of implementation would begin and they would do their part to monitor developments closely. But they could not see how such a process could begin under the current state of repression. As to what was to be done in the future, only days ago legislation entitled the Burma Freedom and Democracy Act had been introduced in the United States Congress on a bipartisan basis banning all exports from Burma to the United States. The Bill specifically cited the Director-General's call in response to the article 33 resolution for all member States and constituents to review their relationship with the regime to ensure that they did not directly or indirectly contribute to forced labour. Many other countries were considering similar action. In the light of the lack of progress regarding the actual elimination of forced labour after all these years and the recent developments inside the country, it was time for the Director-General to re-issue and strengthen this call. And the Worker members hoped that this time governments would respond in a much more serious way.

The final paragraph of the report of the Commission of Inquiry revealed a saga of untold misery and suffering, oppression and exploitation of large sections of the population inhabiting Myanmar by the Government, the military and other public officers, a story of gross denial of human rights to which the people of Myanmar had been subjected since 1988. The report had expressed the hope that in the near future the old order would change, yielding place to a new one in which everyone in Myanmar would have the opportunity to live with human dignity and to develop his or her full potential in a freely chosen manner without subjection or enslavement by others. This could happen only through the restoration of democracy. The current events inside the country appeared to show that the people of Burma were as far or further from that goal today than they had been when the report was written five years ago.

The Employer members recalled that the case of the use of forced labour in Myanmar was an extraordinary one as forced labour had been a reality in the country for decades, embracing all areas of life on the basis of national law and deep-rooted practice. Intensive efforts had been made for a decade to adopt effective measures to put an end to this grave violation of Convention No. 29, which was the fundamental Convention with the highest number of ratifications. All efforts so far had been extremely difficult. As shown in the voluminous information before the Committee, many small positive steps had been taken over the years, but many setbacks had also occurred. The position of the Government of Myanmar had been characterized for a long time by silence, preferring not to hear the denunciations and contesting the existence of forced labour in the country. Formal cooperation had emerged only recently. The activities undertaken by the ILO from July 1998 to May 2002 had revealed the deep-rooted legal and practical causes of forced labour in the country and had resulted in a difficult but also intensive period of cooperation, although such cooperation was always delayed and occurred only after pressure had been exerted.

Concentrating on recent developments and with reference to the joint Myanmar/ILO Plan of Action, the Employer members pointed out that this agreement had been initialled but not yet signed. They recalled that the agreement had been the result of great efforts made by the ILO Facilitator and had been approved by the Governing Body at its November 2002 and March 2003 sessions. They thanked the ILO for the efforts made in this respect. The agreement related to the same basic demands that had been made for some time. Firstly, the Village Act and the Towns Act, which set the legal basis for forced labour, had to be removed and, secondly, new provisions abolishing forced labour had to be enacted, published in all the necessary languages and disseminated in order to raise awareness. The almost secret decrees issued so far had been inadequate. The measures contained in the Plan of Action were to be implemented from July, in particular in a pilot region. By furnishing technical assistance, the ILO was providing significant help to the Government. However, the core demands for clear legal provisions which would prohibit forced labour throughout the country remained the same. Violations of such provisions had to be accompanied by sanctions and such sanctions had to be implemented in an impartial manner, especially as those who violated the law were often high officials in the administration and the military. Victims should be able to lodge complaints without fear of reprisals. In this regard, the task of the Facilitator was particularly important. Concerning the pilot project, the Employer members wondered how the Government would finance the replacement of forced labour by regular paid workers.

The Employer members concluded that this case continued to reflect a dual picture, as in the recent past. On the one hand, the Government announced its formal cooperation with the ILO based on agreements. From this point of view, the situation was one of progress. On the other hand, the situation with regard to the more important issue of practical progress towards the abolition of forced labour was unsatisfactory. Forced labour in Myanmar was not rooted merely in legislation or a practice that had run out of control, but was part of the whole state system. It was a systemic phenomenon from which the whole population suffered. The recent agreement offered a glimmer of hope, but it was for the time being only an agreement on paper which had not been implemented in practice. The Employer members also expressed deep concern at the recent developments. They emphasized that the discussions had gone on long enough and that it was now essential to see concrete results as soon as possible for the benefit of the people of Myanmar.

The Employer members added that they were aware of the gravity of the situation which had led to the holding of the present sitting. They indicated that the case of Myanmar was one of the most serious in the modern history of the ILO and that it concerned the violation of the Forced Labour Convention, 1930 (No. 29). They emphasized their support for the principles of labour law relating to the abolition of forced labour. There were no productive advantages which were not based on the respect of these rights. States had to contribute to seeking solutions and to the application of all instruments of the ILO for the achievement of these goals. That is why they did not question the application of article 33 of the Constitution, an unprecedented event in the history of the ILO. Following the Governing Body and the International Labour Conference, the Employers would follow closely this discussion and the progress that was being achieved, and they would share their doubts and their observations. The Employers commended those steps which implied the opening and initiation of dialogue. Evidently, such steps were not the solution, but only the tools for reaching a solution. The solution was in the effective application of the Convention, with a view to the effective and complete abolition of forced labour. There had to be the conviction, not just the presumption that forced labour had been completely eradicated, and this had to be verified by tripartite means. Furthermore, there should not be any doubts that the victims of forced labour could have access to justice, and the Facilitator would have an important role to play in this respect. The Employer members expressed their gratitude to the Liaison Officer, and for the appointment of a Facilitator, as well as for the adoption of the Plan of Action. This had to be implemented on the ground and immediately, since the case concerned violations of fundamental human rights. Beginning with the present session of the Conference and until the next session of the Governing Body in November, the Employer members expected to receive sufficient information to dispel any doubts. It was important to distinguish between the means used to identify violations and the real situation. The events of recent days had had a negative impact on the situation in the country, as well as on the abolition of forced labour. They hoped that the Plan of Action would be implemented in an efficient way and that it would introduce a new order that would change the attitude of the Government.

The Government member of Viet Nam, speaking on behalf of the ASEAN member States of the ILO, expressed appreciation to the Director-General for his efforts in promoting cooperation with the Government of Myanmar and welcomed the political will and commitment of the Government to observe Convention No. 29, as well as its continuing determination to eradicate forced labour from the country. He also welcomed the Plan of Action for the elimination of forced labour practices in Myanmar concluded between the Government and the ILO. This important agreement would go a long way in assisting the efforts of the Government to resolve the issue. The Plan of Action and the strenuous efforts by the ILO Liaison Officer in Myanmar would foster better cooperation between the ILO and Myanmar. It was therefore extremely important that the discussion in the Committee on the Application of Standards on this issue be conducted in a constructive and forward-looking manner. He expressed the hope that the effective implementation of the Plan of Action would bring about an improvement of conditions in Myanmar and would lead to a situation that would enable the Conference to remove, upon the recommendation of the Governing Body, the measures taken against Myanmar under article 33 of the Constitution. He finally encouraged the Government and the ILO to continue their cooperation until the issue was completely resolved.

The Government member of Greece, speaking on behalf of the European Union countries, the candidate countries (Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia), the associated countries (Bulgaria, Romania and Turkey), and Iceland and Norway, which associated themselves with his statement, he emphasized that the establishment of genuine democratic procedures in Burma/Myanmar was essential for the expression of the will of the people and for its well-being and that the European Union fully supported the people in their efforts to bring justice and social advancement to the country and to tackle impunity, human rights violations and the practice of forced labour. It also fully supported the work of the ILO and its Liaison Officer and their efforts for the implementation of the Plan of Action, which was a positive step forward, although its successful implementation would be the key issue. He expressed support for the appointment as Facilitator of Leon de Riedmatten, who should be allowed to operate freely to help victims of forced labour seek redress. It would be important to establish a local office in the pilot region to review and support complaints. If successfully implemented during the initial 18-month period, the Plan of Action should be extended beyond the pilot region.

However, the European Union deplored the recent decisions by the Burma/Myanmar authorities, especially the detention of Daw Aung San Suu Kyi and NLD party officials, the closing down of NLD offices and the suspension of the activities of universities throughout the country, and called on the authorities to release immediately Daw Aung San Suu Kyi and her party officials, to allow the opening of the universities and NLD offices, and to engage constructively with the United Nations Secretary-General's Special Representative, Mr. Razali. These acts were of grave concern to the European Union. They seriously undermined the stated commitment of the authorities to the process of national reconciliation and the creation of an environment that would facilitate the proper implementation of the Plan of Action and they demonstrated a lack of political will for the restoration of democracy in the country. Credible action on forced labour was very difficult in the absence of full commitment by the authorities to pursue economic, social and political reform. The European Union was concerned that the recent political developments reflected a serious decline in the authorities' interest in pursuing national reconciliation and the return to democracy in the country, as demonstrated by the stalling of the political reform process and the continued absence of credible policies to tackle the worsening economic situation. The issue of national reconciliation was of crucial importance if the use of forced labour was to be ended. Also of grave concern was the continued refusal of the Government to enter into a genuine democratic dialogue with Daw Aung San Suu Kyi. Moreover, the structure and the size of the armed forces, and their use for internal security reasons, contributed significantly to the overall incidence of forced labour and the reported acts of associated violence. It was also clear that it was the armed forces which were the most resistant to cooperation with the ILO.

The situation would be kept under close and continuous review and the European Union would respond quickly and proportionately to developments on the ground, be they positive or negative. In view of the lack of sufficient progress to date, it would be inappropriate for any consideration to be given to removing the measures imposed under article 33 of the Constitution. Before such consideration was warranted, the Conference and the Governing Body would need substantial evidence that the authorities had met the conditions of the Commission of Inquiry and had taken sustained action to eliminate forced labour. In the meantime, this issue required close monitoring by the ILO.

The Government member of Switzerland indicated that her Government endorsed the statement by the Government member of Greece, who had spoken on behalf of the Member States of the European Union.

The Government member of Libyan Arab Jamahiriya stated that, since the adoption of the resolution on the use of forced labour in Myanmar under article 33 of the ILO Constitution, various efforts had been made with a view to ensuring the application by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29). Several meetings had been held, missions sent to the country, a Liaison Officer had been appointed, administrative measures had been adopted and special orders had been issued, circulated in ministries and published in order to acquaint the people with the prohibition of forced labour and enable them to submit complaints. The Plan of Action had been adopted and now needed concerted efforts in order to be implemented. As long as the political will was present in Myanmar, as had been repeatedly affirmed, the ILO should continue to provide technical cooperation in order to achieve the main objective, which was to eliminate forced labour and alleviate the suffering of the people of Myanmar. He considered that, in order to demonstrate good intentions on all sides, with a view to encouraging the eradication of forced labour in the country, it might be advisable to suspend the application of the resolution on Myanmar adopted under article 33 of the Constitution.

The Government member of the United States recalled that the Committee of Experts, after reviewing all the information available to it at the end of the previous year, had concluded once again that none of the three recommendations formulated by the Commission of Inquiry in 1998 had been implemented. The Village and Towns Acts had not been amended. The administrative orders regarding forced labour had not been sufficiently publicized, and their dissemination had not stopped the recruitment of forced labourers and the brutal treatment that so often accompanied it, particularly by the military. Finally, there was no indication that anyone responsible for using forced labour had ever been prosecuted under the laws of Burma.

In the face of this discouraging report, the Plan of Action came as a welcome new development. The Government acknowledged that forced labour was ignoble and stated that it would make unremitting efforts to eliminate it from the country. The various work programmes, if implemented in good faith, should help to raise awareness among public officials, military personnel and the population in general of the issue of forced labour and the right to redress. The understanding on the Facilitator and pilot region were particularly important, as these were the elements that were missing when the Governing Body had examined the Plan in March. The Office, and particularly the Liaison Officer and her assistant, deserved much credit for successfully negotiating these agreements. She also expressed gratitude to Mr. de Riedmatten for agreeing to serve as the Facilitator.

She emphasized the importance of the implementation of the Plan. Over the next 18 months, it would be necessary to watch closely for evidence that the Government was genuinely committed to the strict enforcement of the ban on forced labour in the pilot region and in the country as a whole. The various components of the Plan, including in particular the role of the Facilitator, had to be implemented with the Government's full cooperation and without delay. While she agreed that, as stated in the Plan's conclusion, the elimination of forced labour could not be accomplished overnight, she also believed that measurable progress could and had to be made within the 18-month period. Good faith implementation would be the test of the Government's commitment.

In that connection, it was impossible to ignore the violent events that had taken place in Burma on 30 May of 2003. Officials from the United States Embassy in Rangoon who had visited the site of these events found evidence of a premeditated attack, instigated by the Government, against Daw Aung San Suu Kyi, one of the world's most courageous defenders of human rights. The Government's version of the story was not credible and its actions so far suggested that it had decided to end efforts aimed at national reconciliation. The Government had not lived up to its commitments in the past, and it was only to be hoped that it would demonstrate by its actions in implementing the Plan of Action that it could fulfil the commitments it had entered into on forced labour.

The Government member of Australia stated that the Australian Government's position on forced labour practices in Burma was clearly on record, not only in the context of the ILO, but also in its support for the United Nations resolutions on Burma. He said that his Government had paid close attention to the observations of the Committee of Experts, the additional report provided to the Conference Committee by the Office and the statement made by the Government representative of the Government's observance of its obligations under Convention No. 29.

He noted that the Committee of Experts in its report referred to the lack of concrete developments over eight years in Burma, including those in the drafting of a new constitution and the redrafting of old labour laws. He emphasized that Australia had on many occasions expressed its disappointment at this slow rate of progress in addressing the issue of forced labour. He stated that in this context the agreement reached on the Plan of Action was a development worthy of international support. This Plan of Action contained many positive elements. In particular, he offered strong support for the appointment of the Facilitator, the creation of field observation teams and the identification of a pilot project. These were all moves in the right direction and he urged the Government to extend the various activities nationally.

Although he did not believe that it was appropriate for the present Committee to become involved in broader political debates, it was nevertheless appropriate for Committee members to convey clearly to the Government that recent events had raised serious doubts about its intention to implement the Plan of Action. Although welcome, the Plan of Action was a modest achievement when set against the work still to be done in the country to stop abuses of human rights. The detention of Daw Aung San Suu Kyi, the Secretary-General of the National League for Democracy, and her supporters had brought that into sharp focus in the past week. The Australian Government had called for Daw Aung San Suu Kyi's immediate release and expressed concerns about her welfare. There was no justification for her detention and he again urged the Government to release her without delay. He expressed his gratitude to the Office and, in particular, to the Liaison Officer and her assistant for their ongoing efforts to help eradicate forced labour in Burma.

The Government member of New Zealand emphasized that her Government had repeatedly called on the Government of Myanmar to make strenuous and effective efforts to fulfil its obligations under Convention No. 29. Her Government was heartened to see a credible Plan of Action before it, which included, significantly, an agreement on the establishment of an independent facilitator and a pilot region.

Nevertheless, she remained concerned that there were currently few signs of improvement on the ground towards the elimination of forced labour in Myanmar. A Plan of Action was a very positive step in the right direction, but the key test remained that tangible results were delivered to those experiencing, or facing the threat of forced labour. These results had to be driven by a firm political commitment to end this abhorrent practice. She reiterated previous calls on the Government of Myanmar to give higher priority to this issue. While recognizing that the implementation of the Plan of Action had to be a step-by-step process, she urged the Government to exceed targets in view of the considerable time taken to agree on the Plan and the long history of violations of human rights that had prompted it.

While emphasizing the long-standing position of her country that technical bodies such as the ILO should not be drawn into debate on more general political issues which might detract from their mandated tasks, she noted that the eradication of forced labour in Myanmar was unlikely to take place in a climate of fear, where freedom of expression was suppressed. It was in this context that she reiterated her condemnation of the re-arrest of Daw Aung San Suu Kyi and her supporters and urged their immediate release.

The Government member of Sri Lanka welcomed the efforts made by the Government of Myanmar in cooperation with the ILO towards the elimination of forced labour. He expressed his confidence of Myanmar's commitment to its obligations under Convention No. 29. Furthermore, he believed that the Plan of Action signed by the Government and the ILO last month in Yangon was a positive step towards realizing this objective. The concrete elements detailed in the Plan of Action provided a good basis in this regard. He encouraged Myanmar and the ILO to continue working together and expressed the hope that the effective implementation of the Plan of Action would lead to constructive discussion on this issue in the future, resulting in the removal of measures taken against Myanmar by the Conference.

The Government member of India was pleased to note that this matter, which had engaged the attention of the Conference Committee and the Governing Body for some time, was in the process of being resolved satisfactorily. In his view, the Committee would wish to express its appreciation for the accommodation and flexibility shown by the Government of Myanmar.

He recalled that at the last session of the Governing Body the Chairperson, referring to the Plan of Action proposed by the Government of Myanmar, had indicated the supplementary elements necessary in order to meet the concerns expressed by some members. Those concerns had been addressed, leading to the successful conclusion of the agreement between the Government and the ILO on 27 May 2003. In addition to the formal understanding on the Facilitator, the Plan of Action comprised a road-building project in a pilot area, alternatives to the use of forced labour and information and measures aimed at awareness raising.

His country had consistently advocated the path of constructive dialogue between the ILO and the Government of Myanmar, which had brought results. He referred to previous calls to give Myanmar the necessary assistance to bring about the needed changes, rather than linking it to the political process and economic reforms.

As a matter of principle, his country supported the adoption of a promotional approach by the ILO in matters falling within its mandate, rather than a confrontational one. The appointment of an ILO Liaison Officer last year with the full support and cooperation of the Government was an important step in the right direction. The Myanmar-ILO joint Plan of Action, to be implemented over an 18-month period starting from 1 July 2003, was the logical next step. The ILO had undertaken to provide technical assistance and support to Myanmar for the projects identified in the Plan of Action. These were positive steps in the right direction and involved commitments by the ILO and the Government. He believed that nothing should be done to jeopardize these positive trends. The Conference Committee should encourage the ILO and the Government to continue moving in this positive direction. The Plan of Action therefore deserved full support.

An observer representing the International Confederation of Free Trade Unions (ICFTU), speaking with the authorization of the Officers of the Committee, emphasized that, despite the denials of the military regime, forced labour still occurred in Burma because the regime did not have the political will to change its treatment of the people. After all the time and effort devoted by the ILO to the issue, the authorities had destroyed the confidence of the ILO and the international community by their attitude towards Daw Aung San Suu Kyi. This was proof indeed that the military regime relied on brute force to solve problems, whether they were financial, political, or ethnic. He said that before and during the ILO's visits to the country, a major plan had been implemented to ensure that all the people, even in rural areas, denied the existence of forced labour. But this action showed that the authorities were concerned about the repercussions of ILO action. They were not worried about the representatives of the European Union, the United Nations, or the Red Cross, who did not interact with the people and were not visible. But the ILO was visible to the people and it was only ILO action that would be able to eradicate forced labour, forced relocations and violations of workers' rights in the country. He therefore said that, as part of the pilot project, monitoring visits should be carried out by the ILO to every city to reinforce the hope of the people. With reference to Daw Aung San Suu Kyi, he reaffirmed that she was a hostage and that United Nations representatives had been refused access to her. He therefore called upon the ILO and its Members to take strong and concrete action to enforce a solution in the country.

The Worker member of the Netherlands recalled that very rapidly after the adoption of a resolution concerning Myanmar by the Conference in 2000, the ILO had made a first effort to monitor its follow-up by the tripartite constituents. By the end of 2000, the Office had requested governments, employers' and workers' organizations in member States to indicate what they had done to implement the resolution and review their relations with Burma.

The trade unions in his country had welcomed these measures as a wake-up call and an encouragement to make changes. They had made good use of the first report to put pressure on the Government of the Netherlands to change its policy. Moreover, this action had been effective and, although in February of 2001 the Government had reported to the ILO that its policy was neutral in this respect, three months later this had changed to a policy of "further discouraging" contacts with Burma. However, three years after the adoption of the resolution by the Conference, it was strange that the ILO had not made any efforts to repeat this action. He expressed his regret at this lack of activity and asked whether there were any plans for a new reporting exercise and, if so, when it would take place. He suggested that when the Office was preparing a new round of reporting on the implementation of the resolution, it should include questions not only on the activities of the three constituents, but also on tripartite activities at the national level. He added that the Office should also encourage the use of existing relevant non-ILO instruments for the implementation of the resolution, in an effort to improve awareness among governments, the business community and trade unions. He referred, in particular, to the United Nations Global Compact, and the OECD Guidelines for Multinational Enterprises. The latter had been used in his country to encourage enterprises to make a contribution to the elimination of forced labour in Burma, both directly and by requesting their business partners in the host country to respect the paragraph on forced labour in the Guidelines. He referred to complaints under the OECD Guidelines lodged by the trade unions in the Netherlands against a dredging company and a number of travel agencies which continued to operate in Myanmar. Another complaint against a company importing wood from Myanmar was being prepared. Jointly with the Austrian Trade Union Centre the Dutch unions were looking into possibilities of lodging a complaint under the OECD guidelines against the Austrian airline Lauda Air. In all these cases, the trade unions were working closely with the Burma Committee in the Netherlands, and possibilities were being explored of joint action with trade unions in other countries. He therefore called upon all governments, employers and trade unions to review their commercial relations with Myanmar.

The Worker member of Italy deplored the injury and the arrest of Daw Aung San Suu Kyi and the nationwide crackdown on the democracy movements which made it very hard to believe in the Government's good will in the implementation of the recently agreed Plan of Action. The key problem was unfortunately the confirmed absence of a real political will to eliminate what could be called one of the backbones of the survival of the military junta.

The Ambassador of Burma had declared in the Governing Body in November 2002 that his was a country in transition striving to become a modern, peaceful, prosperous and democratic State and that transition needed to be a gradual process. It should then concentrate its budget and macroeconomic policy on the social development of its people and should refuse forced labour and undemocratic behaviour.

It was therefore difficult to understand why, instead of investing in the eradication of forced labour and the promotion of productive and decent jobs, it had doubled the size of its army since 1988 with an estimated 470,667 soldiers. Seventy seven thousand children under the age of 18 are forcibly recruited, threatened with jail or brutally beaten if they refused to join the army or if they tried to escape. It should be borne in mind that the Burmese Army was now one of the largest armies in South-East Asia and that 49.9 per cent of state expenditure was used for military expenses. Large quantities of weapons were imported from China, the Russian Federation and other countries. It was clear that forced labour was essential to the survival of the army and there was no way that the country could get out of the vicious circle of forced labour unless there was serious political commitment to completely reverse the situation. For these reasons, it was important that the Plan of Action focused as a matter of utmost urgency on the military, and particularly on regional commanders, to oblige them to change their behaviour and their means of working. Another important way of eradicating forced labour was to intervene to radically change the national budget structure. The already difficult economic situation was worsening, due also to the militarization of the rural economy. Forced labour, the land confiscation policy and rice procurement for export and for rice supplies to civil servants at subsidized prices forced farmers to sell most of the harvest to the Government at a price four to five times lower than that of the market price. This, together with the export-orientated policy to earn hard currency, explains the shortage of rice and the deterioration in the health conditions of farmers.

With the aim of developing the Union of Myanmar Economic Holdings and its branch, the Myanmar Economic Corporation, which constituted another instrument for the perpetration of forced labour, the Government had promoted travel and tour companies and factories exporting to Europe, the United States and Canada. Joint ventures had become the main logistical and economic support for the organization of the military regime. Since full foreign ownership of companies was forbidden, all the investments in the country were developed through joint ventures with the military.

The ILO resolution implementing article 33 of the Constitution had given rise to important actions, such as the European Union Common Position. She thanked those companies which had withdrawn from the country but deplored that many others still had significant investments in the country. According to Eurostat, since 1996 European Union countries had increased their imports from Burma more than 500 per cent. Denmark was the highest on the list, with 3.75 per cent procapita followed by the Netherlands, the United Kingdom, Belgium and France.

Other urgent measures are needed to make the ILO resolution really effective. The multilateral development banks, such as the ADB and of governments financing such institutions as the Italian Government, also needed to be consistent and revise their policies and agreements by suspending their participation, technical and financial support of the country through such programmes as the Great Mekon Subregion Economic Cooperation Programme. She called for the Global Fund to Fight AIDS, Tuberculosis and Malaria, set up by the Genoa G8, to withdraw the recently approved $17 million project directly in favour of the military regime and regretted that it had refused a programme which would have been implemented by democratic Burmese organizations.

European governments and the European Union should go far beyond the measures taken already. She urged them to adopt economic measures and to impose a ban on investments and trade with Burma on the grounds that any commercial or economic link would help the regime to perpetuate forced labour. Moreover, she appealed to governments and the European Union to implement XX of the GATT Agreement, which referred to measures relating to the protection of human health and measures relating to the product of prison labour. According to the WTO reply to the ICFTU request for clarification on this matter, governments could take trade measures the Government of Burma without fear of reprisals.

The Government member of Japan emphasized that his Government's position had always been and would be to resolve the problem of forced labour in Myanmar through dialogue and cooperation. In this regard, the Government of Japan, in cooperation with the international community, wished to continue to cooperate with the parties concerned through its comprehensive approach, encompassing social, economic and political dimensions. In this context, he referred to the recent incident involving the detention of Daw Aung San Suu Kyi and other NLD members by the Government. His Government regarded this incident as deeply regrettable. Through its continued engagement with the Government of Myanmar, Japan had persistently called for their immediate release, assurance of their political freedom and the prompt rectification of the present situation in Myanmar.

Referring to the question of forced labour in Myanmar, he expressed his appreciation to the Director-General and the staff of the ILO for their efforts to strengthen dialogue and cooperation with the Government of Myanmar. He also commended the work of the Liaison Officer since her assignment in Yangon.

He expressed his belief that it was of the utmost importance for the Government to take appropriate measures in response to the recommendations of the Commission of Inquiry. In this respect, he understood that the ILO and the Government had negotiated the Plan of Action for the elimination of forced labour, following the guidance of the Governing Body in November 2002. He wanted to emphasize that the purpose of this Plan was to encourage the authorities in their efforts to ensure the prompt and effective elimination of forced labour.

He welcomed the fact that a formal understanding on the Facilitator had been reached in Geneva in May 2003 and that the rest of the Plan of Action had been agreed upon in Yangon at the end of May 2003. He hoped that through the implementation of the Plan of Action, first in pilot areas and later at the national level, the Government would be able to discharge its obligations under Convention No. 29, by taking substantial steps towards the eradication of forced labour in the country.

He encouraged the Government to make further efforts and demonstrate its political commitment by the steady implementation of the Plan of Action, and expected the ILO to be able to present a report on the implementation of the Plan of Action to the next Governing Body in November 2003. If this report was positive, it would be possible to discuss further cooperation between the ILO and the Government beyond the scope of the eradication of forced labour.

The Worker member of Senegal stated that the re-examination of the case of Burma showed that, despite certain improvements, the Government had refused to implement the recommendations that had been made. This refusal by the Government to honour its commitments was the principal cause of the ineffectiveness of the procedures and the immunity enjoyed, in particular by the military. No specific or concrete instructions had been given to the civil or military authorities. The interpretation given by the military authorities to concepts such as work that is offered or benevolent was a method of evading Order 01/99 adopted by the Ministry of Interior. This Order, despite its adoption, did not prescribe the types of activity for which the requisitioning of labour was prohibited. The line between compulsory work and voluntary work was unclear and related to the question of the payment of wages.

The field observation teams had found that the documents distributed were printed in English and Burmese. However, despite the promises made, no explanations had been provided in the various ethnic languages in view of the scarce respect shown these people. Moreover, the villagers frequently had to pay fees for informational meetings, as well as the travelling expenses of the officials of the State Council for Peace and Development. The villagers questioned had indicated that they had not been informed of the measures taken to put an end to forced labour. The widespread confusion that now reigned and the terror inflicted upon the population were not conducive to the submission of complaints against forced labour. Furthermore, the authorities had not provided for any budget to recruit paid workers. The budgetary changes requested by the mission had not been put into effect. In this respect, the lack of commitment of the authorities was likely to seriously affect the credibility of the official agreement on the pilot region.

Finally, he emphasized that the approach taken by the authorities for the elimination of practices of forced labour seriously undermined the credibility of the official agreements concerning the Facilitator and the pilot region.

The Worker member of Pakistan said that, while he welcomed the Government's expression of commitment to the elimination of forced labour, he could only be dismayed by recent developments, and particularly the detention of Daw Aung San Suu Kyi. He emphasized once again that freedom from forced labour could only be fully achieved when civil liberties were respected, as reaffirmed in the Declaration of Philadelphia. He recalled that the issue of forced labour in the country had been under discussion by the Conference Committee and the Governing Body for many years and urged the Government to heed the very strong signals sent out through the ILO by all of its member States. Through its failure to take adequate action to amend the relevant provisions of the national legislation, the Government was in violation of the Convention. The orders that it had issued had not been fully disseminated and were not understood or complied with in the country in general. Moreover, the orders themselves were very inadequate. He therefore called upon the Government to implement the recommendations of the Commission of Inquiry, the High-Level Team and other ILO bodies by amending the legislation which allowed the use of forced labour and by adopting penalties against all those persons, including the members of the armed forces, who are responsible for its use. While welcoming the adoption of the Plan of Action, he warned that monitoring would be required for its effective implementation. In view of the overriding need to pursue social development in conditions of freedom, he called upon the Government to comply with its obligations relating to the rights of workers.

The Worker member of Greece recalled that the condition of slavery, to which the people of Burma had been reduced for approximately 30 years, had been on the agenda of this Committee for 12 years now. Despite this, progress had only been made on paper, and even so, the Government still had to translate into the ethnic languages the Orders it had agreed to adopt and to disseminate them during the first quarter of 2003. Moreover, the information brochures on forced labour would have to be published in the ethnic languages of the country, as the Government had undertaken to do in the first quarter of 2003. And finally, the victims of forced labour would have to be able to have recourse to justice. At the present time, while the authorities pretended that this possibility existed, the absence of any information concerning complaints, judicial proceedings and penalties demonstrated the considerable gap between the reality on the ground and the picture presented by the authorities. This contradiction became more evident in view of the statement of the Government to the Governing Body in November 2002 according to which Myanmar was a country in transition striving to become a modern, peaceful and prosperous democratic State. In conclusion, he said that history showed that tyrannical regimes did not last forever and that the intensity of the fall of tyrants was always proportionate to their cruelty.

An observer representing the World Confederation of Labour (WCL), speaking with the authorization of the Officers of the Committee, stated that until now there had been continuous use of forced labour, coordinated by high-ranking military officers in some areas of Burma. In most villages, road constructions and repairs were done by villagers themselves at the order of the military commander through the village chairman. Villagers were summoned to do the hard work and required to bring their own tools and food. They were obliged to work for a certain number of days without pay, and fines were imposed in case of failure to work. This kind of work was also required in the construction of military stations. Prisoners were also required to do hard labour, such as fetching thousands of buckets of water per day, serving as porters to battalions of soldiers and carrying rice and rum bottles weighting about 30 kilos, as well as military supplies and ammunition to nearby army camps. Since prisoners were not well fed, they could hardly carry the heavy weights and were therefore subjected to beatings by the soldiers.

The farmers who used to toil their own fields were forced to work in government rice fields, with the result that their land became unproductive and they lost their harvest. Leaving them with nothing to survive on resulted in an increased flow of refugees to Thailand.

Referring to Convention No. 87, she indicated that a large number of human rights violations were linked to freedom of association. There was a blatant denial of freedom of assembly, association and expression. The legal framework in Burma deterred and even banned any legitimate action aimed at establishing well-functioning, independent and representative workers' organizations in the country. Anyone who invoked the law to challenge arbitrary power faced arrest, violence and possibly death.

The situation in the country was greatly affecting the region. It was inhumane and unjust to deprive the Burmese people of their human rights and freedom. While most of the countries in the region were evolving democratically, Burma had not improved economically since the Asian crisis and the spread of SARS in the region. The issues of the illegal migration of workers and the increase in refugees from the country significantly aggravated this problem.

She emphasized that if the authorities were to implement their responsibilities towards their citizens, it had to provide more job opportunities to its people by diverting its budget allocation to income-generating activities, rather than allocating most of its finances to the military. In this way, the people would no longer resort to fleeing to nearby countries for jobs and the issue of irregular migration could be addressed.

The Worker member of Japan stated that, despite the promises of the Government, forced labour was still widespread even today. He urged the Government of Burma to implement the recommendations in paragraph 47 of the report of the Committee of Experts, including the amendment of the Village Act and the Towns Act, and Order No. 1/99 and its supplementing order.

He recalled that under the resolution adopted by the Conference in 2000, member States had to review their relations with the Government of Burma and, at the same time, not give to it any advantages to prevent the continued use of forced labour. He expressed the view that sanctions would be the most effective form of action if all member States could get together to put pressure on Burma. Unfortunately, in reality, there were several countries and some multinational companies which supported the Government, financially and politically. He did not deny the fact that international investment could help to open societies and bring democratic changes in some countries. However, this was not the case of Burma. Foreign direct investment in the country had to be carried out through joint ventures with the military regime. Under the law, fees and benefits from investments went straight to military generals. According to the Economist Intelligence Unit report, foreign direct investment in Burma from 1988 to 2000, except for the Asian financial crisis, grew steadily from US$56 million to 1,352 million US dollars. This was largely due to the fact that most of the top investors in Burma were ASEAN countries, such as Singapore, Thailand, Malaysia and Indonesia. By the end of March 2001, foreign investors from 25 countries had committed themselves to 322 projects in 11 sectors of economy, amounting in total to US$7,395 million. The most important aspect was that the amount of investment was greatly increasing even now, in spite of the ILO resolution.

The ten major foreign investors, most of which were multinational companies, originated from Singapore, the United Kingdom, Thailand, Malaysia, the United States, France, Indonesia, the Netherlands, Japan and the Democratic Republic of Korea. He added that his own country, as one of those that supported Burma economically and politically, had not fulfilled its responsibilities with respect to the democratization of the country. He mentioned that China was ranked the 15th with 61 million US dollars and it cannot be exonerated from political responsibility of supporting the military regime of Burma. There was no doubt that these types of financial and political support helped the military regime to survive and to oppress the people of the country. He urged the representatives of these governments and employers' groups no longer to offer any advantage to the military regime.

The Worker member of Malaysia recalled that he had spoken on the issue of forced labour in Myanmar on many occasions in the Governing Body. Referring to the promises made by the Government representative to the Governing Body, he emphasized that in reality nothing had been done for the past five years. Yet the Government representative was once again making promises. He recalled that no responses had been supplied to the many questions raised in the Governing Body in November 2002, in particular concerning the killing of seven people and the action taken to find and punish those responsible. Referring to the issue of human rights, he indicated that people of Burma had been waiting for many years to see the light at the end of the tunnel. There was no point in listening to any more empty promises. It was time for the Government to accept its responsibilities and to implement the recommendations of the Commission of Inquiry. However, no amendments had yet been adopted to the Village Act or the Towns Act. He therefore called upon the Governing Body to set up a committee to follow the implementation of the recommendations of the Commission of Inquiry.

The Worker member of Canada expressed his frustration and anger at the intolerable situation of forced labour in Myanmar. He referred to the developments since the last Conference as outlined in document D.5. A Liaison Officer had been appointed and a Plan of Action, including a pilot project and a facilitator mechanism, to help victims of forced labour to seek redress had been put together at the last second. Indeed, on 29 May 2003, as noted in the report, satisfaction had been expressed at finally reaching this level of progress. Unfortunately, the recent attack near a copper mine, merely hours after the meeting of the Liaison Officer with General Khin Nyunt, clearly pointed to the challenges posed by the eventual implementation of the Plan of Action. Firstly, the Plan of Action was to be implemented over an 18-month period. The question was what assurances the Conference Committee had that the authorities would not use this period to continue its attacks on the democratic opposition, while claiming to comply with the Plan, putting the time frame in question. Secondly, with respect to the mechanism for making complaints by those who had been subjected to forced labour or those whose rights had been violated, under the present circumstances in the country it was doubtful whether many persons would seek redress, thus rendering public-awareness campaigns ineffective. Thirdly, while the purview, composition and functions of the field observation teams were outlined in great detail, any specific role for the facilitator remained completely undefined. It was unthinkable that under such circumstances and in the absence of the clearly recognized independence of the facilitator, an effective mechanism could be contemplated.

He expressed appreciation of the efforts made by the Director-General of the ILO, and the Liaison Officer. Unfortunately, the events of the past week served as an overwhelming and painful reminder that these challenges could not be overcome in the present context. He pointed out that the attacks of last week took place near an enormous copper mine operated by a Canadian mining company, Ivanhoe Mines, which was actively seeking to increase its investment in the country and therefore continuing to profit directly or indirectly from the existence of forced labour. In fact, Canada had become the third largest investor in the country.

He said that the Plan of Action should now be put on hold until such time as the Committee was satisfied with the commitment of the authorities to live up to their international commitments. Until then, regular visits by members of the Committee and/or the Governing Body should be considered as a means of ongoing monitoring of the situation.

The Worker member of India commended the Director-General and the Office on the adoption of a policy of considered, calculated and persuasive action for the elimination of forced and bonded labour in the country and welcomed the cooperative attitude of the Government. He emphasized that forced and bonded labour anywhere were a curse upon humanity and had to be brought to an end as soon as possible. Nevertheless, the issue needed to be seen in the context of the colonial past of the countries concerned. Myanmar had lost its traditional vocations, trade, culture and value system, together with enormous wealth, and was struggling for survival. He said that it was the essence of democracy that it needed to encompass diversity to achieve unity. While survival of the fittest was the law of the jungle, in a civilized world laws were needed so that the survival of the weakest became the responsibility of the fittest. He therefore called upon the ILO to use all the means at its disposal to raise awareness, educate and assist the authorities and people of Myanmar so that they could eliminate forced and bonded labour. However, he warned that this would require a change in national attitudes which could only be achieved through careful nurturing.

The Government member of Bangladesh commended the ILO for its constructive efforts to deal with the situation of forced labour in cooperation with the Government. He welcomed the Plan of Action and the Government's expressed commitment to eradicate forced labour and believed that its constructive engagement with the ILO was the most effective means of addressing the issue. He hoped that the measures agreed upon would generate an important momentum that would provide further impetus for continued constructive cooperation.

The Government member of Brazil emphasized the importance accorded by his country to the eradication of forced labour and respect for human rights. With respect to the issue of forced labour in Myanmar, he noted that the Government had shown the will to cooperate and had signed the Plan of Action with the ILO. He indicated that the proposed measures, especially the designation of the Facilitator, could contribute more effectively to promoting a climate of dialogue and cooperation. He expressed the hope that this would bring about changes in the country in the future. On the other hand, he expressed his concern at recent events and expressed the hope that such events would not have the effect of making it more difficult to apply the measures aimed at the eradication of forced labour.

The Government member of Canada regretted that, at a truly painful and tragic time in Burma's history, it was necessary to doubt the willingness of the Government to respect internationally recognized human rights, including the rights of workers, and particularly freedom from forced labour. At the Governing Body in March, his Government had cautiously welcomed the announcement of renewed commitment by the authorities for the appointment of a Facilitator to assist victims of forced labour to file complaints in a secure environment, as set out in the Plan of Action developed by the Government and the ILO. He gave thanks to the Office, and the Liaison Officer in particular, for their tremendous efforts in developing a more meaningful Plan of Action than that originally submitted by the authorities. The Plan of Action now set out concrete alternatives to the use of forced labour in the country and emphasized the need to eliminate this heinous practice. In particular, he welcomed the appointment of Mr. de Riedmatten as Facilitator and emphasized the need for him to be able to operate freely in helping victims of forced labour seek redress. It would be critical for the authorities to cooperate fully and make every effort to ensure that the Plan of Action was implemented as quickly and effectively as possible.

However, he regretted that, despite the repeated condemnation of forced labour by the international community and the measures taken by the ILO, no appropriate action had been taken by the Government to achieve concrete results. The report of the Committee of Experts gave little reason for optimism and he recalled that the promises made in the past had been hollow. None of the key recommendations made by the Commission of Inquiry had so far been met. In the absence of such action, how was it possible to be sure that the Plan of Action was the appropriate way forward? The grave doubts concerning the political will of the authorities were compounded by the absolute lack of evidence that they were genuinely committed to national reconciliation or democratic transition. In other words, they had yet to establish an environment favourable for the implementation of the Plan of Action. He therefore called upon the authorities to engage immediately in substantive dialogue on national reconciliation, initiate the measures they had already agreed to in the past and implement in full the Plan of Action. Finally, he joined with other members in calling for the immediate release of Daw Aung San Suu Kyi and the other NLD party officials who had been detained.

The Government member of the Republic of Korea expressed appreciation of the progress made by the Government of Myanmar, including the appointment of the Liaison Officer, the development of the Plan of Action and the understandings adopted concerning the Facilitator and the pilot region. She emphasized the significance of the role of the Facilitator in seeking remedies for any victims who were or had been subjected to forced labour. She also hoped that the Government would continue to provide full support to and cooperate with the ILO and that it would adopt a credible and effective response to the ILO's recommendations. She called upon the ILO to help and facilitate the Government in its efforts to achieve concrete progress.

She said that all human rights were interrelated and indivisible. In this respect, she recalled that the Committee had recognized the need to address the important issues that lay within the ILO's mandate in a more integrated manner. She therefore believed that the establishment of a genuinely democratic government in Myanmar was essential for the achievement of all human rights and fundamental freedoms. However, she expressed concern at the recent detention of Daw Aung San Suu Kyi, and her colleagues in the NLD, and the closing down of the NLD headquarters. She called for their immediate release and an early normalization of NLD activities. Finally, she hoped that the Government would fully respect human rights and democratic principles and that it would further enhance its cooperation with the international community in its endeavours to improve the situation in the country, including the eradication of forced labour practices.

The Government member of Namibia reaffirmed that the situation of forced labour in Myanmar was undoubtedly a serious and contentious matter that had been on the ILO's agenda for some time. Positive action had been undertaken to provide technical assistance to the country in a structured, responsible and objective manner. He expressed satisfaction at the appointment of the Liaison Officer and Facilitator and the adoption of the Plan of Action and he urged the ILO to continue its valuable work. However, he emphasized that the most difficult part, namely the implementation of the Plan of Action, was still ahead and called upon the Government to provide full assistance and cooperation for this purpose.

An observer representing the World Organization Against Torture (OMCT) stated that this organization, known as a network of non-governmental national and international organizations, was justified in taking action on forced labour in Myanmar because the means used to impose this form of slavery notoriously included physical and moral torture, rape and summary execution. The Committee had raised the issue the previous year of the murders of victims of forced labour in the State of Shan, of which there had been no serious investigation. The Special Rapporteur of the United Nations Human Rights Commission had described the action taken by the Government on this case as hardly convincing and credible.

Although, from a formal point of view, progress had been noted with the abolition of forced labour on paper, the establishment of a Plan of Action and the appointment of a Facilitator, the need to implement these intentions in practice should not be overlooked. Recent events had been marked by a new wave of political repression, arrests of the opposition and massacres, which had occurred immediately following certain signs of openness towards the international community. Faced with such setbacks, the Facilitator should clearly take all possible precautions, as there were grounds for doubting the guarantees offered to victims who might wish to denounce reprehensible acts. A survey by EarthRights International and the experience of the Human Rights Commission clearly illustrated the extent to which such guarantees could be tenuous.

The scope of forced labour in Myanmar was well known to everybody. A United States government body estimated the number of persons who were victims of these practices at between 100,000 and perhaps millions. There were grounds for doubting whether a regime founded on the reduction of the population to slavery could sincerely wish to reform its system. It could also be doubted whether the regime would have been elected if there had been free elections. In this respect, the United Nations Human Rights Commission had recalled that the will of the people of Myanmar had been clearly expressed at the elections in 1990. The objectives of the ILO (the elimination of forced labour) and the United Nations (the re-establishment of human rights) necessarily depended on a return to democracy in the country.

The Government member of Japan, exercising his right of reply to criticisms raised with regard to the economic assistance provided by his country to Myanmar, emphasized that such assistance was offered solely to address the real needs of the people in the fields of health, education and human development. It was important that the real objective of this assistance should not be misunderstood. He also expressed surprise at the criticism levelled at his Government's participation in the Global Fund to Fight AIDS, Tuberculosis and Malaria and emphasized that action needed to be taken against these diseases wherever they occurred.

The Executive Director of the Standards and Fundamental Principles and Rights at Work Sector, in response to the question raised by the Worker member of the Netherlands as to whether the Director-General had, or had not, written to member States concerning the review of the measures taken by them in relation to Myanmar, recalled that the Director-General took such measures upon the instructions of the Governing Body. Accordingly, he had written to member States following a decision by the Governing Body in November 2000 and reported the information supplied in response to the Governing Body in March 2001. The possibility of reactivating this measure in accordance with the article 33 resolution had been raised in the Governing Body in March 2003, although the Chairperson of the Governing Body had noted then that the Governing Body was not in agreement that the Director-General should proceed with these measures at this stage.

The Government representative said that he had listened with great interest to the statements and comments made and gave sincere thanks to the many speakers who had welcomed and expressed appreciation of the Plan of Action agreed upon by the Government and the ILO. In particular, he expressed profound gratitude to the ASEAN countries and other Government members who had made positive statements in support of his Government. He therefore concluded that, despite some critical comments on extraneous matters, there was a general sense of approval in the Committee, which welcomed the Plan of Action and the ongoing cooperation between the Government and the ILO. He reminded speakers who had expressed pessimistic points of view that the Plan of Action was a landmark agreement which would have been unthinkable even six months earlier. It was the best that could be achieved and met the requirements laid down by the Governing Body. Its implementation was clearly of crucial importance and his Government was committed to its effective application with a view to creating positive conditions that would eventually lead to the elimination of forced labour in the country.

However, he regretted that the forum had been abusively addressed by the observer from the ICFTU, Mr. Maung Maung, whose background of unlawful activities, including terrorism, made him unfit to intervene at the Conference. He also stated that Maung Maung (a) Pyi Thit Nyunt Wai was nothing but a criminal and a fugitive from justice and a terrorist. His criminal activities included, for instance, his involvement in an abortive terrorists' attempt to carry out bomb attacks in Yangon in 1997. He also regretted that certain speakers had referred to recent political developments in his country, which only served to detract from the main subject of the discussions. In his view, there was no linkage between politics and his country's observance of the Convention. The ILO dealt with labour matters, and not political or human rights issues. However, as the matter had been raised, he reluctantly felt the need to respond to the comments made. In this respect, he recalled that his Government had been engaged in national reconciliation efforts since the advent of the State Peace and Development Council. These efforts had borne fruit and, as part of the systematic transition to democracy, the Government was permitting legal political parties, including the National League for Democracy (NLD), to expand their political activities. Since the lifting of restrictions in May 2002, Daw Aung San Suu Kyi had been allowed to travel freely throughout the country and to engage in a wide range of political activities, including meeting the people, foreign diplomats and the international media, and opening NLD party offices throughout the country. In this connection, there had been agreement that the members of the NLD would not engage in any activity that could disrupt the existing peace and stability in the country. While Daw Aung San Suu Kyi had been free to engage in normal political activities, it had also been agreed that prior consultations should be held concerning all her planned trips. However, militant members of the NLD had recently become lawless and their activities had given rise to unrest and disturbances. He expressed the belief that democracy must be disciplined, but indicated that the practices of the militant members of the NLD were a far cry from normal democratic practices. He cited cases of unrest, and even injuries caused by Daw Aung San Suu Kyi's motorcade. He stressed that, if Daw Aung San Suu Kyi was prudent and clever enough, she could have overcome all these problems. It was, therefore, evident that there was premeditation on the part of Daw Aung San Suu Kyi, but not on the part of the Government. In view of these events, the authorities had been compelled to control the situation and take temporary measures to provide protection to Daw Aung San Suu Kyi and some of the militant members of her party. He emphasized that these measures were temporary and gave assurances that Daw Aung San Suu Kyi was safe and unhurt. He said that she did not have even a bruise.

Finally, he reaffirmed that his Government would continue its policy of national reconciliation and of transition to democracy in a systematic and step-by-step manner. He also recalled his Government's determination and commitment to resolving the issue of forced labour and to implementing the Plan of Action.

The Worker members strongly protested against the accusations made by the Government representative with regard to Mr. Maung Maung. They emphasized that the statements were false and that other authorities, including the Thai Government, had recognized their wrongfulness. This was an old technique and was often used to prevent the application of Convention No. 87. They concluded that, after last week's events, there were good grounds for wondering who the real terrorists were.

The Employer members emphasized that the discussion had been long, serious and very necessary and that a rare degree of agreement had been reached on the subject under discussion. The Government should take note of this and ensure that its efforts went much further than in the past. Urgent action needed to be taken to implement the Plan of Action. In practice, this would require almost revolutionary measures, since forced labour was a part of the system in the country and there was no separation of powers within the State. An extraordinary effort would therefore be required from the Government to ensure that its people enjoyed their basic human right to freedom. However, if the practical steps agreed upon most recently were not taken, this would amount to a major setback. It was to be hoped that the Government realized that it was at a crucial crossroads and that a country which refused to fulfil its international obligations faced isolation from the international community, with all the consequences that this entailed for its people. The Employer members hoped that the Government realized this and would adopt a responsible approach in taking concrete action.

The Worker members stated that they did not wish to repeat the analysis of the case nor the conclusions of the Committee of Experts which had provided many irrefutable arguments. They repeated their main conclusion that the Government of Myanmar never followed up its assertions of good intentions with concrete action. The Plan of Action might be an indication of good intentions, but its implementation was completely undermined in advance by last week's events. In order to make this Plan of Action (which was positive in itself) credible, at least three elements were necessary. The Government should immediately release Daw Aung San Suu Kyi and her supporters, allow democracy in the country and engage in a constructive dialogue with the ILO's representatives.

Finally, they requested the ILO and the Director-General to reiterate and reinforce the call made in 2000 to the constituents of the Organization to inform the Office of the measures taken in order to help eliminate forced labour in Myanmar.

The Government representative regretted that some of the Committee's conclusions were incorrect. He emphasized that recent political developments in the country were not relevant to the subject under discussion and he expressed his reservation in this respect.

The Worker member of the Netherlands, while fully aligning himself with the positive position adopted by the Worker members with a view to the conclusions, emphasized that the latter were very weak as regards the point of reporting on the implementation of the June 2000 ILO resolution which he had raised.

(not reproduced:

B. Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, l930 (No. 29) by Myanmar

Document D.5

Brief summary of developments since June 2002

Developments since the 286th Session of the Governing Body (March 2003)

Annexes

Document D.6

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) (Governing Body documents GB.285/4, GB.285/4(Add.) and GB.285/4(Add.2)

G. Extracts from document GB.285/PV: Minutes of the discussion at the 285th Session (November 2002) of the Governing Body of developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) (Governing Body documents GB.286/6, GB.286/6/1, GB.286/6/1(Add.) and GB.286/6/1(Add.2)

Extracts from document GB.286/PV: Minutes of the discussion at the 286th Session (November 2003) of the Governing Body of developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

The Committee recalled that its debate was taking place at a moment when the international community was deeply concerned at the events which were occurring in Myanmar, namely the incommunicado detention of the leadership of the National League for Democracy, in particular its General Secretary, Daw Aung San Suu Kyi, and the alleged killing and disappearance of an unknown number of people. In this connection, a number of speakers expressed their concern at the personal situation of Daw Aung San Suu Kyi and asked that she immediately be released. These events, and the resulting climate of uncertainty and fear, called seriously into question the will and ability of the authorities to make significant progress in the elimination of forced labour. The Committee requested the Government representative to convey its profound concern to his Government.

In its observation, the Committee of Experts had noted that the three recommendations of the Commission of Inquiry had still not been implemented: the Village and Towns Acts had not been amended, although Order 1/99 and its Supplementary Order could, if applied in good faith, provide a statutory basis for ensuring compliance with the Convention in practice; measures to stop the exaction of forced labour in practice, such as concrete and specific instructions to the civilian and military authorities and budgetary allocations for the effective replacement of forced and unpaid labour, had not been taken; and there had been no prosecution of or sanctions imposed on persons for exacting forced labour.

The Committee took note of the statement of the Government representative, as well as the other information and documents before it. It noted with appreciation the Government's cooperation with the ILO Liaison Officer in Myanmar since she had taken up her position in October 2002. It had to note, however, that the measures taken by the Government to publicize widely Order 1/99 and its Supplementary Order, including the translation of these texts into six languages of national minorities, and the field visits carried out by the field observation teams of the Convention No. 29 Implementation Committee, still had not resulted in tangible progress in the application of the Convention. It was clear from the information available from various sources, including the impressions of the Liaison Officer, as reflected in her report to the 286th Session of the Governing Body, that recourse to forced labour continued in practice and that the situation was particularly serious and appeared to have changed very little in certain areas with a heavy presence of the army. It also noted that despite the discussions between the authorities and the Liaison Officer in the Convention No. 29 Implementation Committee, all the investigations carried out by that Committee into the allegations of forced labour presented by the Liaison Officer had found that these allegations were unfounded.

Taking into account the urgent need expressed repeatedly by the Committee of Experts, the Governing Body and the present Committee to move from procedural steps to substantive progress in putting an end to forced labour, the Committee welcomed the fact that the Government and the ILO had agreed on 27 May 2003 on a joint Plan of Action for the elimination of forced labour and expressed its support for this Plan. It noted with interest that, on the basis of the suggestion made by the High-Level Team, the Plan envisaged the designation of an independent Facilitator to assist victims of forced labour to obtain redress under national legislation. It was noted that the Facilitator would carry out his functions throughout the country. Under the Plan of Action, the Government had undertaken to strictly enforce the prohibition on forced labour in the pilot region. While emphasizing that the implementation of the Plan of Action was without prejudice to the general obligation of the Government to put an end to forced labour in the whole of the country, the Committee felt that this Plan of Action, if it was applied in good faith, could enable tangible progress to be made in the elimination of forced labour and could open the way to more substantial progress. The Committee urged the Government to take all the measures required for this purpose. The reports of the Facilitator to the Governing Body, as well as the evaluation reports on the implementation of the Plan of Action, should allow the results obtained to be judged.

In view of this, the Committee was bound to deplore the situation created by recent events in Myanmar. A climate of uncertainty and intimidation did not provide an environment in which the Plan of Action, and in particular the Facilitator mechanism which it established, could be implemented in a credible manner. The Committee trusted that the Government would take the necessary measures to bring an end to this situation. The Committee hoped that the implementation of the joint Plan of Action would go ahead as soon as the Director-General considered that the conditions were met for its effective implementation. The Director-General was expected to report to the Governing Body at its November 2003 session on developments in the situation, in the light of the discussions in the present Committee.

The Government representative regretted that some of the Committee's conclusions were incorrect. He emphasized that recent political developments in the country were not relevant to the subject under discussion and he expressed his reservation in this respect.

The Worker member of the Netherlands, while fully aligning himself with the positive position adopted by the Worker members with a view to the conclusions, emphasized that the latter were very weak as regards the point of reporting on the implementation of the June 2000 ILO resolution which he had raised.

(not reproduced:

B. Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, l930 (No. 29) by Myanmar

Document D.5

Brief summary of developments since June 2002

Developments since the 286th Session of the Governing Body (March 2003)

Annexes

Document D.6

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) (Governing Body documents GB.285/4, GB.285/4(Add.) and GB.285/4(Add.2)

G. Extracts from document GB.285/PV: Minutes of the discussion at the 285th Session (November 2002) of the Governing Body of developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) (Governing Body documents GB.286/6, GB.286/6/1, GB.286/6/1(Add.) and GB.286/6/1(Add.2)

Extracts from document GB.286/PV: Minutes of the discussion at the 286th Session (November 2003) of the Governing Body of developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

Individual Case (CAS) - Discussion: 2002, Publication: 90th ILC session (2002)

Special sitting to examine developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29).

Record of the discussion in the Committee on the Application of Standards

The Chairperson recalled that this special sitting was being held to determine whether Myanmar was complying with its obligation to give effect to the provisions of the Forced Labour Convention, 1930 (No. 29). This item had been placed on the Committee's agenda pursuant to paragraph 1(a) of the resolution adopted by the Conference at its 88th Session, under article 33 of the ILO Constitution, with a view to the adoption of measures to ensure compliance with the recommendations of the Commission of Inquiry established for that purpose. The resolution of the Conference stated that: "The question of the implementation of the Commission of Inquiry's recommendations and of the application of Convention No. 29 by Myanmar should be discussed at future sessions of the International Labour Conference at a sitting of the Committee on the Application of Standards specially set aside for the purpose, so long as this Member has not been shown to have fulfilled its obligations".

For the examination of this case, the Committee had before it the following documents: (1) the observation of the Committee of Experts on the Observance of Convention No. 29 by Myanmar (reproduced below under B); and (2) document C. App./D.6(Corr.), on "Other developments concerning the question of observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)" which contains the report of the interim Liaison Officer (reproduced below under C); and document C.App./D.7, containing Governing Body documents GB.282/4 (Report of the High-Level Team), GB.282/PV (Minutes of the discussion in the Governing Body at its 282nd Session)), GB.283/5/2 (Report of the ILO technical cooperation mission to Myanmar) and GB.283/5/3 (Further developments following the return of the ILO technical cooperation mission) (all reproduced below under D to G).

A Government representative of Myanmar stated that Myanmar was going through a process of political, economic and social changes, with very encouraging political developments recently which have been welcomed by the international community. The speaker stated that the Government had several measures to report, which had been taken between the 89th Session of the International Labour Conference last year and the present ILC in June 2002, and which had been significant and sustained.

The speaker stated that one important development after the 89th Session of the ILC was the visit of the ILO High-Level Team to Myanmar from 17 September to 6 October 2001. The High-Level Team acknowledged in its report a certain decrease in the incidents of forced labour. It also reported that in contrast to the situation reported in 1998 by the Commission of Inquiry, the High-Level Team found no indications of the current use of forced labour on civil infrastructure projects. The High-Level Team also made some recommendations on ways to resolve the issue.

Another significant development mentioned by the speaker was the appointment of the interim ILO Liaison Officer in Myanmar, pursuant to a Memorandum of Understanding signed between the Government of Myanmar and the ILO in March 2002. The speaker stated that the Government of Myanmar had done its part to implement this Understanding. As the Director-General was still looking for a suitable candidate for the post of an ILO Liaison Officer he proposed to appoint an interim ILO Liaison Officer, to which the Government agreed. Consequently, Mr. Leon de Riedmatten, Director of the Centre for Humanitarian Dialogue, was appointed as the interim Liaison Officer with effect from 6 May 2002. Since then, Mr. Leon de Riedmatten had been able to hold a series of meetings with the authorities and a broad range of people. He had held a total of 24 meetings, including meetings with the Lt.-Gen. Khin Nyunt, Secretary of the State Peace and Development Council; the Minister of Labour; the Minister of Home Affairs; a representative of the Prime Minister's Office; the Deputy Minister for Foreign Affairs; as well as high officials from various other ministries and departments, politicians and representatives of national races, the diplomatic community, the United Nations agencies and NGOs in Myanmar. Furthermore, the interim ILO Liaison Officer was able to hold substantive discussions on crucial issues relating to the observance of Convention No. 29 with the Implementation Committee, led by the Deputy Minister for Home Affairs. Field observation teams led by the members of the Implementation Committee had made numerous trips to various parts of the country. The objective of these trips was to ascertain the observance of orders prohibiting forced labour and the actual functioning in the field of the comprehensive framework of the legislative, administrative and executive measures put in place by the Government.

The speaker emphasized that his list of significant steps taken by the Myanmar Government was not exhaustive, and that all of the developments and significant progress made by the Government of Myanmar and the ILO in this respect have been fully reported by Mr. Leon de Riedmatten in document No. C. App./D.6 (Corr.). The speaker considered that, on the whole, Mr. Leon de Riedmatten's report was positive, factual and fairly balanced. The significant developments and positive measures taken by the Government of Myanmar outlined in this report clearly demonstrated the consistent political will and the firm commitment of the Myanmar authorities to continue their efforts for the elimination of forced labour in the country. To this end, the Myanmar Government was doing its utmost by taking effective measures systematically and step by step. The speaker stressed that there are certain things to be accomplished by Myanmar and also certain things which need to be accomplished by the international community. The second aspect has been rightly highlighted by the High-Level Team in section 6 of its report. The High-Level Team underscored the importance of economic modernization, consistent political will of the authorities and the engagement of the international community. It also stressed that the international community should be of assistance in the process. As the earnest endeavours of the Government of Myanmar had made further progress, the international community should respond positively to these significant steps. The speaker hoped that these steps will pave the way for a review of the question of removing all the measures taken against Myanmar under article 33 of the ILO Constitution. The Government of Myanmar attached great importance to the process of dialogue and cooperation with the ILO. This process was working well, and has produced tangible results. The speaker hoped to sustain and carry it forward in order to resolve the issue and achieve the aforementioned objective.

The Worker members took note of the statement of the Government representative according to which the situation had improved. They urged the Government to understand that the initiatives and changes which had been mentioned should be appraised by the ILO and that the Organization should be in a position to evaluate the application of Convention No. 29, especially to assess in an objective and impartial way the implementation of the adopted measures and their real impact on forced labour in Myanmar. The elements available for the time being did not lead to the conclusion that the situation was improving. Forced labour ravaged the country for many years and the search for a solution was very difficult in the ILO as in other international organizations. This special session was part of the global approach adopted by the ILO in the face of the situation.

The Worker members recalled that independently of documents D.6(Corr.) and D.7, the Conference Committee on the Application of Standards relied in the first place on the report of the Committee of Experts, without necessarily excluding all the new information.

The Worker members wished that this case would continue to be examined as long as the situation of forced labour in Myanmar did not improve. The seriousness, persistence and systematic character of the violations of Convention No. 29 in Myanmar were no longer contested, but the problem was complex, due to its nature, its diverse forms and its extent. It weighed on the whole population and its consequences were dreadful. It was harmful to employment, since the massive requisitions of labour by the authorities prevented "normal" work, and this was detrimental to the economy of the country as a whole.

Based on the observation that the violations of Convention No. 29 were widespread, systematic and existed in law as well as in practice, the Worker members called on the Government to finally implement the recommendations of the Commission of Inquiry and the Governing Body, namely: (1) that the legislation be brought into conformity with Convention No. 29 and, hence, that all legislation rendering forced labour possible be abrogated; (2) that in actual practice, recourse to forced labour be put to an end in the whole country and especially the remote areas; (3) that the penalties foreseen against persons found guilty of having exacted forced labour be effectively imposed.

No doubt, following the initiatives of the Office, changes had been observed. But these changes concerned mainly, if not exclusively, the procedure. Following the appeals of this Committee, the ILO had sent in 2001 a High-Level Team to Myanmar and in the border regions in order to assess the situation on the spot. On the basis of the report of this mission, the Governing Body had adopted conclusions aiming in particular that the Director-General "pursue the dialogue with the authorities in order to define the modalities and parameters of continued and effective ILO representation in Myanmar, which should be put in place as soon as possible".

A technical cooperation mission had followed in February 2002 in order to reach agreement on the possible conditions and modalities for an effective ILO representation in this country. Further to an Understanding between the ILO and the Government of Myanmar, Mr. de Riedmatten had been appointed interim Liaison Officer on 6 May for a period of two months.

But all these events concerned only the procedures. The concrete situation had not changed, in any case not significantly. The Government should do what was needed to bring about a fundamental change of the situation in the three abovementioned areas, since today there was no improvement as pointed out by the Committee of Experts in paragraph 29 of its observation, where it noted that "none of the three recommendations formulated by the Commission of Inquiry and accepted by the Government have so far been met".

As long as there was no irrefutable and, most importantly, convincing proof that the situation in Myanmar had improved, the Worker members would not even consider changing their position concerning the measures decided on the basis of article 33 of the ILO Constitution.

Finally, the Worker members noted that, in the course of the discussion, each aspect of this particularly complex case would be addressed in the name of the Workers' group, by other speakers: the evidence of the persistence of forced labour in Myanmar would be addressed by the Worker member of Pakistan; aspects concerning infrastructure by the Worker member of France; the aspects concerning ethnic diversity by the Worker member of Indonesia; social and labour relations by the Worker member of Sweden; the attitude of the army and the infringements of human rights by the Worker member of the Republic of Korea; the attitude of the Japanese Government and foreign development assistance by the Worker member of Japan; the involvement of multinationals by the Worker member of the Netherlands; trans-frontier migration by the Worker member of Thailand; and the information collected by the International Confederation of Free Trade Unions in the country by Mr. Maung-Maung, General Secretary of the Federation of Trade Unions of Burma.

The Worker member of the United States, on behalf of the Worker members, said that much had happened since last year's special session concerning this very difficult case. Despite the latest developments, the basis of discussion in this Committee was the Committee of Experts' report. Thus, his intervention would concentrate on what the experts had to say regarding Burma's continuing non-compliance with its treaty obligations under the Forced Labour Convention, 1930 (No. 29). However, he also planned to comment on the information contained in documents D.6(Corr.) and D.7. The comments of the experts were divided in three sections concerning: changes in the law, actual practice and the enforcement of penalties for the exaction of forced labour.

Much had been said both in this Committee and the Governing Body about the administrative orders issued by the regime that instructed the authorities to ignore the provisions of the Village Act and Towns Act which provided the legal basis for the exaction of forced labour. The experts emphasized this year in paragraph 5 of their observation that further measures were necessary as outlined in the report of the Commission of Inquiry in paragraph 539(b). These changes had already been discussed in the past in this Committee and in the Governing Body. It should be emphasized, as noted by the experts in paragraph 4 of the observation, that, according to the High-Level Team, legislative powers had been exercised by the Government at least on two occasions, in June 2000 and February 2001; when it adopted the "Judiciary Law, 2000" and the "Attorney-General Law, 2001". The arguments presented by the Government in the past for its refusal to amend the Village Act and Towns Act did not seem to hold up, therefore, and the Worker members wondered why the Government remained so obstinate in refusing to comply with the request of the Commission of Inquiry and the Committee of Experts to amend the law. After all, from the point of view of the victims, a mere withdrawal of the administrative orders, perhaps by a single signature of a top military leader, would once again create the "legal" justification for exacting their labour by force. Furthermore, very important questions remained regarding the seriousness of the efforts made by the Government to communicate the orders to its people and to those most responsible for exacting forced labour, the regional and local military leaders. As emphasized in paragraph 9 of the report of the Committee of Experts, clear instructions were still required to indicate to all officials concerned, including officers at all levels of the armed forces, both the kinds of tasks for which the requisition of labour was prohibited, and the manner in which the same tasks were henceforth to be performed.

Regarding the dissemination of the orders to the populace via the mass media, the interim Liaison Officer had informed this Committee in paragraph 25 of document D.6(Corr.) that town criers had been used to scream out verbal explanations. Somehow, this did not seem to be enough. The Worker members wondered about the extent to which any effort was made to disseminate the orders in various ethnic languages and why the radio media did not seem to be used at all. The information contained in the report of the Committee of Experts described a continuing sluggishness on the part of the Government to commit to a real campaign to let the people know that forced labour would not be tolerated and that those held responsible for exacting forced labour would be punished. Recent interviews of victims who had crossed the border into Thailand supported this description. Very few had any knowledge whatsoever that forced labour was now against the law in Burma.

Regarding the actual continuation of forced labour practices in Burma, he wished to emphasize the report issued recently by the Federation of Trade Unions of Burma and by a reputable international NGO, EarthRights International, that documented forced labour in three ethnic States and in two Divisions based on interviews of 77 victims. Of particular note was the fact that the use of forced labour continued to be closely associated with other severe human rights abuses. Many of the victims interviewed by EarthRights had been beaten, stabbed, and/or tortured. There had been numerous reports of executions and incidents resulting in multiple deaths. And there had been six cases of rape, several of which had resulted in the death of the victims. This information was a reminder of what this case was really about. Regarding enforcement, the experts had found no indication that any person responsible for the exaction of forced labour and the concomitant crimes had been sentenced or even prosecuted under the Penal Code and in conformity with Article 25 of Convention No. 29. The report of the interim Liaison Officer in paragraph 25 of document D.6(Corr.) confirmed that up to that point there had been no instances of prosecutions under section 374 of the Penal Code. This point seemed to be confirmed by the Government in its intervention. So in sum, the experts concluded once again as they had for a number of years, that none of the three recommendations formulated by the Commission of Inquiry and accepted by the Government had so far been met.

Turning to the information contained in documents D.6(Corr.) and D.7, while recognizing that the establishment of an interim liaison office was an indication of some movement, the Worker members saw this as only a first step in a long journey rather than an historic breakthrough as the Government had characterized it. Several conditions had to be met for the liaison office to be credible and to contribute in a significant manner to the elimination of forced labour. The Worker members anticipated that a permanent Liaison Officer would be appointed soon, and repeated what the Governing Body had said in March that such an appointment was only an initial step toward establishing a full and effective, permanent representative office. In the interim, the liaison office should be quickly and sufficiently staffed and as had been emphasized in the Governing Body discussions, must have complete freedom to carry out its work throughout the country. The Worker members wondered if monitoring progress, or the lack thereof, toward the elimination of forced labour would be one of the responsibilities of the permanent liaison office. This would be an exceedingly difficult task given the dimensions of the problem throughout Burma and would require a staff of sufficient size and competence. They felt it was extremely important therefore, as a start, that a deputy Liaison Officer be retained without delay. They also believed that if the liaison office was to work effectively, continuity between its work and that of the Commission of Inquiry, the High-Level Team and other past missions was essential. The need for continuity should factor into the appointments of the Liaison Officer, the deputy and other additional staff. The Worker members had some serious concern about the language contained in paragraph 24 of document D.6(Corr.) regarding the importance of confidentiality in facilitating the work of the liaison office. They presumed that the Liaison Officer would be required to report to the Governing Body on all aspects of its work including any progress made or the lack thereof toward the elimination of forced labour. If the need for confidentiality compromised this aspect of the Liaison Officer's work, then the Government must agree to another mechanism such as regular missions to monitor progress or lack thereof. This required the full consent and cooperation of the Government. The need for such ongoing and credible information was extremely important in order to avoid any mistaken impression caused by the liaison office's confidentiality requirements that the problem had diminished when it fact it might not have.

There were of course other, more effective ways to monitor the extent to which forced labour continued to be exacted as well as to collectively empower potential victims to resist it. As the High-Level Team indicated in paragraph 68 of document GB.282/4, if there existed genuine civil society organizations, in particular strong and independent workers' organizations as required by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Burma, these could have provided individuals affected by forced labour with a framework and collective support which would have helped them to make the best possible use of whatever remedies that were available to defend their recognized rights. Unfortunately, there was absolutely no freedom of association in Burma. Independent trade unions did not exist and any attempt to organize one was dealt with in the harshest terms. The Worker members called on the Government once again, as this Committee had been doing over many years, to fulfil its commitments under Convention No. 87. As indicated by the High-Level Team, this must be a necessary component of any sincere and effective effort on the part of the Government to eliminate forced labour.

Regarding the establishment of an ombudsperson to whom complaints regarding forced labour could be submitted and who would have a mandate and the necessary means to conduct direct investigations, the Worker members were extremely disappointed at the continued resistance by the Government expressed in paragraph 21 of document D.6(Corr.) toward the establishment of such an ombudsperson. In the absence of an independent judiciary, there was an urgent need for such an institution as the only potentially effective legal channel available to victims to end the practice of forced labour and seek legal redress. The failure to implement this important aspect of the High-Level Team's recommendations suggested to them that the Government was not really serious about enforcing the legal changes it claimed to have made. They saw only small steps and continued resistance rather than real commitment to end the practice of forced labour. Regarding the murders in Shan State, they were extremely disappointed once again in the Labour Minister's comments contained in paragraph 21 of document D.6(Corr.) regarding the alleged murder by members of the military of seven members of the Shan Community for complaining to authorities about being forced to labour. The continued resistance by the Government to an independent investigation gave them the growing impression that the allegations must be true. If the Government truly believed that the allegations had no basis, then the Government representative should explain why his Government continued to refuse an independent investigation, especially one led by Sir Ninian Stephen, the highly respected Chairperson of the High-Level Team, as proposed at the last meeting of the Governing Body. The establishment of the facts of this case by an independent investigation followed by the prosecution of those held responsible for the murders would demonstrate in very concrete terms the Government's sincerity in cooperating with the ILO. Conversely, the continued failure to do so would only further erode the Government's credibility that it was willing and able to punish those responsible for forced labour, including members of the armed forces.

Because of the seriousness of the case over so many years, the Worker members were growing increasingly tired of these small steps. They needed to see real progress toward the elimination of forced labour, not for their sake, but for the sake of the victims, both past and future. The Government had been unable once again to provide any new evidence that would dispute the experts' view that none of the three recommendations formulated by the Commission of Inquiry had so far been met. They would hope and expect, therefore, that the conclusion of this Committee would reflect the actual reality of forced labour in Burma and this Committee's urgent expectation that the Government must move much more quickly and resolutely in ending forced labour both in law and in practice. The Government representative of Burma had begun his comment by noting the political progress made in the country. When in the past the Worker members had referred to the political situation in Burma, it had been argued that the political question was beyond the scope of the case, which concerned forced labour only. The speaker agreed with the stance of the Government representative that political developments impact on the elimination of forced labour. He emphasized that, as had been noted by the Commission of Inquiry in the past, the situation in Burma would be effectively addressed only when political normalization and civilian, democratic rule returned to the country.

The Employer members considered that this unusual case concerned serious and longstanding violations of the Forced Labour Convention, 1930 (No. 29). The population of Myanmar had been suffering for a long time as forced labour had been exacted of them by the military for building roads, railways, and other infrastructure. For over ten years now, the case had been the subject of observations by the Committee of Experts. However, the immediate abolition of forced labour had been called for by the ILO and promised by the Government more than 30 years ago and this Committee had examined this case repeatedly noting the violation of the rights enshrined in Convention No. 29 in special paragraphs.

Convention No. 29, which had the highest number of ratifications, was rightly considered as a core Convention of the ILO since it touched upon a basic human freedom. Although the Government had at first denied all allegations about the existence of forced labour in the country, this had been described exhaustively in the 1998 report of the Commission of Inquiry. The practice of forced labour had been supported by two laws, namely the Village Act and the Towns Act. The Committee of Experts had asked for an amendment of these laws, a change in the actual practice and the enforcement of penalties. All these calls had been strongly supported by the Governing Body and the Conference Committee. Since no sufficient progress has been observed over the years, the Conference had adopted at its 88th Session in May-June 2000 a resolution in which it was clearly stated that the Conference Committee on the Application of Standards would continue to examine the case every year until final satisfactory improvement had been made. In May 2001, the "Understanding on an ILO Objective Assessment" was concluded between the ILO Director-General's representative and the Government of Myanmar in order to enable the carrying out of an objective assessment in the country with respect to the practical implementation and actual impact of the legislative, executive and administrative measures which the Government had adopted. In autumn 2001 a High-Level Team visited the country and its report was submitted to the Governing Body at the session in November 2001. A further mission had taken place in February 2002. The fact seemed to be that there was still in Myanmar legal justification for exacting forced labour. The two Acts, which were the basis for the exaction of forced labour, had not been revoked and the practice remained unchanged. However, the Government had issued Order No. 1/99 and its supplementing Order in 1999 in order to provide a statutory correction to the existing legislation with a view to the practical implementation of the Convention. Although this represented an important step, the existing legislation should be amended and this had not been accomplished yet.

Overall, the evolution of this case seemed to have two aspects. The first concerned the process of discussion between the ILO and Myanmar. After an early denial on behalf of the Government, gradual steps had led to increased cooperation with the ILO, a High-Level Team had visited the country and other technical cooperation missions had taken place. Since May 2002, an interim Liaison Officer had been appointed. During the various missions carried out by the ILO, the Government had stuck to its promises and cooperated with the ILO. The reports emphasized this point expressly. How- ever, in order to arrive at this situation, continuous pressure had to be exercised on the Government. Although willingness to cooperate seemed to be growing on the part of the Government, this willingness could have been demonstrated more rapidly. Overall, these points together lent a positive outlook to the case.

However, when it came to the core of the case, i.e. matters of substance concerning the final abolition of forced labour, the Employer members emphasized that the only way to achieve substantive progress would be to abolish in law and practice forced labour, which had prevailed in Myanmar and continued to prevail to a certain extent. Although the two Orders might provide a basis for ensuring compliance with the Convention in practice, the most important problem was the publication of these texts. Knowledge of their content was indispensable in order to ensure their application. The Government had emphasized on various occasions obstacles to the dissemination of information due to the size of the territory and the remoteness of certain areas. It was important to ensure that the dissemination of information concerning these Orders was stepped up through all communication tools available, including the mass media. However, the dissemination of new laws by the local authorities and the military did not seem to be a safe method as these were the principal actors exacting forced labour. Moreover, in view of the many languages spoken in the country, the provisions of the Orders needed to be translated and published in all languages. These Orders were totally unknown in some regions of the county. No progress had been made in this respect. Furthermore, given the enormity of projects carried out with forced labour, the abolition of such labour would have had budgetary implications and would have been reflected in the budget. But no information in this respect was available and this was an indicator that forced labour was not completely abolished. The same applied in the area of penalties as instructions prohibiting the requisition of forced labour seemed to be rarely applied. In this respect, a reversal of the burden of proof was required. The Government had to prove that the requisition of forced labour was not carried out any more. As to the Government's assertion that forced labour represented a tradition in the country, the existence of a "grey area" between what constituted forced and voluntary labour was problematic. However, the facts provided certain indicators. The army, one of the main authorities exacting forced labour, had been increased. No complaints concerning the use of forced labour had been made since in most cases, those who lodged complaints were punished. The Government denied access to independent observers while, as indicated in document D.6(Corr.), the interim Liaison Officer had heard misgivings about the creation of an ombudsperson. Moreover, there was no inquiry into the allegation of the exaction of forced labour which caused the deaths of seven people and the enforcement of a ban against forced labour depended on local authorities especially the military commanders.

All this showed that there was still a long way to go to achieve the abolition of forced labour. This Committee should urge the Government to accelerate the process for the eradication of forced labour in the country. Steps had been made in the right direction, but should go further and faster. Progress should not be only on paper - it was about people and their basic rights. The objective of this Committee should be to make the rights enshrined in Convention No. 29 a social reality for the sake of the population of Myanmar. The Employer members were realists and would continue to look upon developments attentively, critically, with a rational spirit, and with an eye towards the rights of the people of Myanmar.

The Government member of Spain spoke on behalf of the Government members of the European Union. The Government members of Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia - Central and Eastern Europe States associated with the European Union - the Government members of Cyprus, Malta and Turkey - associated countries - and the Government members of Switzerland, Norway and Iceland had also endorsed the statement. The speaker stated that the European Union continued to encourage the restoration of democracy, the pursuit of national reconciliation, the protection of human rights and the elimination of forced labour in Burma/Myanmar. The European Union also took note of the last report of the ILO and, in this respect, welcomed with satisfaction the progress achieved in setting up a liaison office in Rangoon as a first step towards the objective of an effective ILO representation in Burma/Myanmar. The European Union called on the authorities of Burma/Myanmar to facilitate requests from the secretariat to ensure that the office had both sufficient staff and technical back up to be able to perform its duties and the freedom of movement and level of cooperation required for it to discharge these duties in practice.

The European Union once again urged the authorities of Myanmar to appoint a permanent ombudsperson, since it believed that its role could be of importance in achieving major progress towards eliminating forced labour. It hoped therefore, that consultations on such an appointment would be held between the Office and the authorities of Myanmar. The European Union also urged the authorities to follow up on the proposal made in the March 2002 session of the Governing Body that the enquiries into the allegations concerning the seven murders in Shan State should be confirmed by an external independent authority accepted by all parties. The European Union expressed its concern that, despite some cooperation with the International Labour Office, no significant progress had been achieved towards eradicating forced labour. The European Union also wished to express its concern that information received on Myanmar pointed to an increase in the incidence of forced labour and forced contributions of labour in certain areas. Furthermore, the European Union called on the authorities of Myanmar to pursue urgent and sustained action for the adoption of immediate steps for the total elimination of forced labour throughout the country. In the light of the foregoing, and of the still very modest progress made in the fight against forced labour in Myanmar by the authorities, the European Union believed that possible consideration of removing the measures imposed under article 33 of the ILO Constitution remained some way off. The European Union would continue to monitor the situation closely in the months leading up to the Governing Body meeting in November 2002.

The Government member of Indonesia, speaking on behalf of the ASEAN States Members of the ILO, gave thanks to the Director-General for his efforts in cooperating with the Government of Myanmar. He welcomed the signing on 19 March 2002 of the understanding between the Government of Myanmar and the ILO on the appointment of an ILO Liaison Officer in Myanmar not later than June 2002. He added that the selection of the Liaison Officer was extremely important and needed to be made with the utmost care after consultations with the parties concerned. He welcomed the fact that agreement had been reached on the appointment at this early stage of Mr. Leon de Riedmatten as the ILO Liaison Officer on an interim basis as of 6 May 2002, pending the appointment of a full-time Liaison Officer. He concluded that, with the appointment of an interim Liaison Officer, cooperation between the ILO and the Government was progressing well and emphasized the importance of the discussions in the Committee on this issue being conducted in a constructive and forward-looking manner. He called upon the Government and the ILO to continue cooperation until the issue was completely resolved.

The Government member of Australia, also speaking on behalf of the Government member of New Zealand, expressed a deep, ongoing interest in this matter and noted the modest progress which had been made since the previous year, and particularly the visit and report of the High-Level Team, and most recently the appointment of the interim Liaison Officer. While supporting the continuing cooperation between the ILO and the Government of Myanmar, and recognizing that Myanmar had made and continued to make efforts to eliminate the practice of forced labour, he emphasized that the various visits which had taken place and the ILO presence in Myanmar were only a means to an end. There should be no confusion between progress in terms of the process and progress on the substantive issue itself, namely the elimination of forced labour. The High-Level Team had found towards the end of 2001 that, while there had been a very moderately positive evolution, the practice of forced labour in Myanmar was still widespread. While welcoming the modest improvements that had taken place since 1998 he therefore warned that there was still a very long way to go. He therefore encouraged the Government to redouble its efforts to eliminate the practice of forced labour.

The speaker expressed support for the ILO's ongoing role in the country and encouraged the Government and the ILO to continue to cooperate on the early appointment of a full-time permanent Liaison Officer, with freedom of movement and access, as a step towards a more substantive ILO presence. In addition, a fully-fledged ILO Office with adequate staff and resources should be established as soon as possible. He also urged the Government to implement the recommendations of the High-Level Team, in particular the appointment of an ombudsperson who would, by mandate and function, have a greater ability to make real progress in investigating and combating forced labour. He also urged the authorities to conduct further inquiries, or to allow an external, independent authority acceptable to all parties to investigate the allegations of the killings of seven villagers in Shan State. He looked forward to a report to the Conference in 2003 which he hoped would record significant substantive progress in the elimination of forced labour in the country.

The Government member of Canada stated that her Government welcomed several recent positive developments in Myanmar, including the liberation of Daw Aung San Suu Kyi with a view to national reconciliation and the appointment of an interim ILO Liaison Officer (Mr. de Riedmatten). She called upon the ILO and the Government of Myanmar to agree to the permanent appointment of a Liaison Officer at Yangon so that the latter could fully discharge his or her duties by the end of this month, as agreed at the last session of the Governing Body. While these developments augured well for future cooperation between the ILO and the Government of Myanmar, the primary objective was the eradication of forced labour in the country. In this respect, the appointment of an ILO Liaison Officer was only a first step pending the establishment of a permanent ILO presence in Myanmar. As emphasized during the 283rd Session of the Governing Body, the Liaison Officer would only be able to carry out his or her task if granted full freedom of movement and access, including to the National League for Democracy, ethnic populations and the military authorities.

The Liaison Officer could play an important role in disseminating the Orders amending the Towns Act and the Villages Act and she was encouraged by the efforts deployed by the Government in this respect. She nevertheless urged the Government to investigate allegations of forced labour and to prosecute and punish those found guilty under section 374 of the Penal Code. Canada continued to believe that the appointment of an ombudsperson would be a useful recourse for victims of forced labour. It continued to request that an independent investigation be opened into the killings of seven villagers in Shan State reported to have been murdered after complaining to the military authorities that they had been constrained to perform forced labour. Canada hoped that the ILO and the Government would continue to cooperate to establish an ILO presence to assist the Government in the implementation of the recommendations of the Commission of Inquiry and the recommendations and conclusions of the Governing Body for the definitive eradication of forced labour in Myanmar.

The representative of the International Confederation of Free Trade Unions, Secretary-General of the Federation of Trade Unions of Burma, welcomed the release of the national leader Daw Aung San Suu Kyi, following 19 months of house arrest. However, he noted that, although the international media had reported the news of her release, the military-controlled media in Myanmar had not mentioned one word about it. Nor had the state media reported the order of General Khin Nyunt to forbid forced labour, although he had informed the ILO that an order had been issued after the ILO adopted the resolution on forced labour in the country. This showed that, even though there was public denial, the regime was scared of international pressure and would quietly manoeuvre to ease it.

He recalled that forced labour still continued in the country, even though it had ratified Convention No. 29 in 1955. Farmers, teachers, health workers, regardless of their age, ethnicity or religion, were forced by the military to work without pay for weeks and months, sometimes for up to six months. These people were not allowed to go back and inform their families, or get leave when sick. Forced labour meant a farmer was taken by the military and not allowed to harvest his crop, a fisherman was taken by the military and made to ferry the troops and not fish for his daily income. It meant that whole villages had to work for six months clearing the forest and levelling the ground for the offshore gas pipeline that is run by multinational enterprises. Even following the ILO's action, people were still being forced to work against their will and without compensation. He referred, for example, to the documented case of a 13-year-old girl who had been forced to clear the undergrowth and plant trees for the military in May 2002. He described how, since 1962, the military regime had so mismanaged the country that, from being one of the richest countries in the south-east Asian region, it had become a least developed country (LDC) in 1987. In this respect, he emphasized that it had become an LDC before there had been any mention of sanctions. It was not therefore the sanctions by the international community following the 1990 election, but the self-imposed isolation and mismanagement by successive military juntas that was consuming the country's resources, creating humanitarian hardship and forcing the people to leave the country. These were the real reasons why Thailand had over 1 million, Malaysia had over 30,000 and Bangladesh and India had over 50,000 illegal migrants from Myanmar.

In explaining why sanctions worked, he gave the following two examples of how, after loudly refusing to cooperate in the course of normal diplomatic discussions, the regime quietly reacted to direct action. First, for over 40 years, the ILO had requested successive regimes to stop using forced labour. The regimes had always denied the violations and replied that they were in the process of rewriting the legislation, while continuing to use forced labour. Only after the ILO took concrete action in 2000 did the regime, in order to ease international pressure, reduce forced labour and then only in areas that could be accessed easily by the international community. Second, the regime used to make seafarers sign a paper declaring that, should they contact the International Transport Workers' Federation (ITF) for any reason, their passports and seagoing certificates would be revoked. Only when the ITF campaigned through trade action to stop this unfair practice did the regime stop forcing the seafarers to sign the papers.

In conclusion, the speaker recalled that the struggle for democracy in Myanmar had made a lot of progress. Direct action had shown results and it was now time for more direct action to be taken to push the regime towards a transparent democratic system.

The Worker member of Japan, on behalf of the Worker members, welcomed the release of Daw Aung San Suu Kyi, which constituted a first step towards the democratization of the country. He called for the recommendations in the High-Level Team's report to be implemented as soon as possible. However, he deeply regretted that, even after the release of Daw Aung San Suu Kyi, there remained very many prisoners who had been in detention for many years for their political activities and peaceful engagement in trade union movements. He referred, in particular to the case of Dr. Salai Tun Than, who had been arrested for conducting a peaceful protest in November 2001 distributing copies of a petition calling for a general election. His arrest was clearly contrary to democratic principles, including the right to freedom of association. He emphasized that the elimination of forced labour was very closely linked to the process of democratization, and therefore to recognition of freedom of association. He therefore urged the Government to guarantee freedom of association for the whole population of the country and to release rapidly the following political prisoners: Dr. Zaw Myint Maung, Jimmy, Soe Myint, Ba Myo Thein, Dr. Myint Maung, Thet Min Aung, U Tin Win, Phyo Min Thein, Htay Win Aung, Zaw Min, Zaw Tun, Nyunt Zaw, Myat Tun, Soe Htet Khine, Tun Win, Win Thein, Sein Hlaing, Kyi Pe Kyaw, Aung Myo Tint, Ko Ko Oo, Aung Kyaw Oo, Hla Than and Yin Htwe. The restoration of their political rights would contribute to the development of democracy in the country.

He indicated that the Government of Japan bore special responsibility for the democratization of Myanmar as its biggest foreign donor. He therefore called upon the Government of Japan to put pressure on the Government of Myanmar not to use forced labour in Japanese overseas development aid projects, which should be strictly limited to humanitarian purposes. The Government of Japan should ensure that such projects did not benefit the military regime and he indicated that the international trade union movement continued to pay attention to the use of forced labour in the Baluchaung Hydropower Station project funded by Japan. The Japanese trade unions also supported those who had been forced to leave the country and come to Japan as a result of their participation in the democratization of their country. Nevertheless, the Government of Japan continued to detain seven asylum-seekers in a detention centre, namely: Aye Thant Kyu, Win Kyaw, Soe Lwin, Maw Thin, Maung-Maung, Win Myint Oo and Khin Maung Lat. He added that the Myanmar Embassy continued to impose a tax on its nationals who were in Japan, amounting to 10 per cent of their monthly salary, or a minimum of 12,000 Japanese yen. If they refused to pay the tax, their passports were not renewed. He called for an end to this practice, which was clearly contrary to international law.

The Worker member of Sweden, also speaking on behalf of the Worker members, expressed the serious concern of the Swedish and Nordic trade union movement over the grave violations of human rights in Myanmar. His delegation had been one of those which had initiated ILO action on this matter as an expression of the view that a member State could not be allowed to continue violating fundamental human rights standards, particularly where, as in this case, the violation had been continuing for over 40 years. In recent years, the Government had either refused to cooperate with the ILO, or taken action at the last minute to avoid the Governing Body taking decisions against it. The fact that ILO missions had been allowed to visit the country recently did not change the overall impression that the military regime only acted when it faced real pressure. The difficulties faced in establishing an ILO presence in the country illustrated this problem. No real genuine will had yet been shown by the country to cooperate with the ILO and to follow its recommendations. Indeed, the Committee of Experts had concluded that by permitting exploiters of forced labour to be perceived as representing the State authority, the Government was confirming the finding of the Commission of Inquiry that the impunity with which government officials, in particular the military, treated the civilian population as an unlimited pool of unpaid forced labourers and servants at their disposal was part of a political system built on the use of force and intimidation to deny the people democracy and the rule of law. He thoroughly agreed with the principle expressed by Professor Amartya Sen in his address to the 87th Session of the Conference in June 1999 that decent work constituted not merely the requirement of labour legislation and practice, but also the need for an open society and the promotion of social dialogue. Professor Sen had added that the lives of working people were, of course, directly affected by the rules and conventions that governed their employment and work. But they were also influenced, ultimately, by their freedoms as citizens with a voice that could influence policies, as well as institutional choices.

The speaker emphasized that in Myanmar there were no free trade unions and that any attempts to establish them were brutally repressed. The total non-existence of trade unions distinguished Myanmar from other one-party States. Indeed, there was no genuine possibility of tripartite dialogue in a country where trade unions were not allowed to exist. Democracy and freedom of association were indispensable elements for real social dialogue and the elimination of the practices of forced labour in the country. Finally, he noted that the democratically elected representatives of the country, gathered together in Bommersvik in his country earlier in the year, had expressed appreciation to the trade unions, employers and governments for their role at the ILC and urged them to implement the recommendations of the Governing Body until forced labour practices were ended in their country. He therefore called upon all the members of the Committee to take responsibility for implementing the action required to achieve this objective.

The Worker member of Spain stated that forced labour constituted a major crime against individual freedom and represented a return to the Middle Ages with the right of the landowner over his serfs.

The speaker noted that the observation of the Committee of Experts had concluded that, as a consequence of pressure from the ILO, the Government had issued Order No. 1/99 which prohibited forced labour in public works. Nonetheless, the military continued to use forced labour, indicating the lack of will on the part of the Government to end forced labour. The ILO must continue dealing with this issue for three reasons: (1) the gravity of the case which implied the denial of free work and thus prevented the integration of the person in society; (2) the attitude of the Government of Myanmar, which threw out small changes to avoid condemnation but without having the will to solve this very grave problem; and (3) in the context of globalization it was unacceptable that certain countries continued to resort to forced labour. The speaker stated that the Conference Committee should give a clear example in this case of its effectiveness.

The Worker member of The Netherlands, on behalf of the Worker members, endorsing the statements of previous speakers, emphasized the role of the OECD Guidelines for Multinational Enterprises in the implementation of the ILO resolution of June 2000. Although the Guidelines had been adopted in 1976, they had been revised in 2000 and now included guidance on forced labour, which recommended companies to endeavour to contribute to its elimination. Moreover, as part of the revision, the implementation system, which had been very weak in the past, had been somewhat reinforced. In addition to the guidance on forced labour, further elements in the Guidelines were of relevance. The first was the general policy guidance that companies should respect the relevant policies of the governments of the countries in which they operated and take into account the views of other relevant stakeholders. The second was a reference to the responsibilities of companies in the supply chain. It was therefore clear that companies which were based in OECD countries, but which operated in Third World countries, were expected to comply with the OECD Guidelines in those countries. Moreover, it was also very clear that the Guidelines did not recommend companies to comply with the policies of governments which ran counter to their international obligations.

Taking the example of his own country, he explained how the OECD Guidelines could be of use to ILO constituents for the implementation of the resolution. In 2001, when the Government of the Netherlands had reported to the Director-General on its implementation of the resolution, it had stated that it had neither encouraged nor discouraged economic activities by Dutch businesses in or with Myanmar. A few months later, following dialogue with the trade unions, the policy had changed and the Government decided to discourage economic transactions with the country. Furthermore, the Government of the Netherlands had recommended trade unions to address the activities of multinationals and other companies doing business in Myanmar. In the National Contact Point for the OECD Guidelines, the trade unions had lodged a complaint against a major Dutch investor in Myanmar on the grounds that it had not complied with the ILO resolution, which formed part of the Dutch Government's policy. The trade unions had also charged the company with not taking into account the views of a major stakeholder in the country and of doing nothing to implement the OECD Guidelines as they related to forced labour. Following this procedure, the trade unions were currently engaged in bilateral dialogue with the company on the manner in which it could comply with the OECD Guidelines. Moreover, the action taken had resulted in parallel measures concerning a business partner of the company in the United Kingdom. The Dutch trade unions, in cooperation with the Burma Centre of the Netherlands, were taking similar action with regard to a number of travel agencies. Based on this action in his own country, he called upon governments to ensure that enterprises trading with Myanmar were more aware of the OECD Guidelines, and on the Member States of the European Union to actively promote the OECD Guidelines as a means of implementing the ILO resolution. Employers' federations should make their members more aware of their support for the ILO resolution and the OECD guidelines. Finally, in their efforts for the implementation of the ILO resolution, trade unions in OECD countries could make better use of the OECD Guidelines as a channel for addressing the activities of multinational enterprises which were based or operated in their country. They could also urge their representatives in European works committees to take similar action.

The Worker member of Senegal recalled that the regularity with which this case came back before the Committee was undoubtedly due to the persistent attitude of the authorities of Myanmar. As recalled by an ICFTU report, recourse to forced labour in the country was a general practice, particularly in conflict areas, and the controversy surrounding the murder of villagers in Shan State was sufficient illustration of the level of subjection to which the population was reduced by the authorities and the fate which awaited individuals who dared to claim their rights. This was the real situation, despite the statements to the contrary by the Government. The latter's lack of sincerity was also amply illustrated by the very limited nature of public information on the illegal nature of forced labour. Taken together, this meant that in future the Government's credibility could not be based only on a few gestures of good will at the procedural level, but needed to be supported by real efforts verified by impartial bodies.

The Worker member of Thailand, speaking on behalf of the Worker members, said that his country had seen a major increase in the number of illegal immigrants from Myanmar. Estimates of their numbers had risen from 500,000 in 1991 to nearly 2 million in 2000. The Government of Thailand had permitted the registration of these illegal migrants, of which 500,000 had now registered, thereby helping to prevent their exploitation by employers. He called upon the Government of Myanmar to change its system of governance and its economic policies which, combined with forced labour and forced relocations, were the reasons behind the exodus. If such changes were not made very rapidly, the numbers of migrants would increase still further. He added that the Government and people of Thailand had supported the membership of Myanmar in ASEAN in the hope that, by becoming a partner, Myanmar would witness changes made to improve the conditions of the people. Nevertheless, the violations were continuing. He therefore called for the maintenance of the ILO resolution and much stronger monitoring to prevent continued violations of workers' rights.

The Worker member of France, speaking on behalf of the Worker members, referred to the observation in the report of the Committee of Experts which noted that widespread forced labour still prevailed in the absence of clarity in Order No. 1/99 and its Supplementing Order No. 1/99, which did not distinguish clearly between obligatory and voluntary service. The legislation of Myanmar does not yet clearly prohibit recourse to forced labour, and its use continues in practice. The population is not generally informed of its rights and cannot escape from the military's exactions of labour, provisions, food and money. No indications of a budget or concrete indications from the Government of Myanmar exist to corroborate its assertions of a decrease, let alone the elimination of forced labour. All testimony collected by the High-Level Team showed, to the contrary, that the military continued with its practices at the local level; the size of the army had more than doubled over the last ten years, which implied an ever increasing recourse to the practices of extorting labour and confiscating property from villagers. The military was in charge of developing infrastructure, such as railroads, roads and bridges, and resorted to forced labour to build them under the threat of weapons. The decrees and orders adopted by the junta would have real value only in a democratic state governed by the rule of law; but such a state had been abolished by those who now governed the country.

The speaker emphasized that unpaid work, or work where the wages are confiscated by the state or in the private interests of the military is forced labour. Wages, even where they are paid by foreign companies, are frequently subject to confiscation; workers are rounded up in the villages and their gains are extorted by the local military. The exaction of wages of a worker paid by a foreign company or the exaction of labour for public work result finally in forcing workers to work without equitable compensation in violation of Convention No. 29. The same applies to forced labour in prisons, where exploitation is so great that detainees die of exhaustion.

Concerning so-called free and voluntary labour in infrastructure projects, witnesses aboundeded to the widespread practice and the accompanying barbaric acts. The speaker referred to testimonies given by victims called up in 2002 for the construction of civilian road infrastructures, one of which was for the benefit of an international oil company whose representatives had inspected the beginning of the work. Such practices constituted not only a violation of Convention No. 29, but also of all of the fundamental principles, as well as all civic, economic and social freedoms. Human rights are interdependent; the violation of a fundamental right such as the right to freely chosen work and equitable remuneration cannot but come with other grave violations of all fundamental Conventions and UN Covenants. The country will never witness sustainable development on these foundations of oppression and exaction.

The speaker added that villagers belonging to ethnic minorities along the State's frontier are often victims of ethnic discrimination. Agricultural and plantation workers do not enjoy freedom of association even though Myanmar has ratified the Right of Association (Agriculture) Convention, 1921 (No. 11), and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

All international action should be aimed at aiding the people of Myanmar, oppressed in a country where democracy had been taken away, by a regime under which forced labour constituted a general practice of the military State. Since no real and sustained progress was yet evident on the part of the military rulers of the country, the ILO must continue its action.

The Worker member of Pakistan, on behalf of the Worker members, welcomed all the statements condemning the crime of forced labour. At the beginning of the twenty-first century, which was supposed to be an age of knowledge, reason and humanitarian values, and when everyone believed that they stood for democratic values, it was a cause of shame that crimes against humanity and basic human values and dignity continued to be committed. Although the Government representative had indicated that the appointment of the Liaison Officer was one of the measures that were being taken as part of a step-by-step process for the abolition of forced labour, all the members of the Conference Committee recognized that forced labour was a clear violation of human rights and of Convention No. 29. Would it not be possible for the Government to punish severely those who had perpetrated this crime so as to prevent future violations? However, there was no evidence of any judicial action or punishments in response to the recommendations of the High-Level Team. Indeed, in practice, as noted by the Committee of Experts, the progress that was being made appeared to be inconsistent in the various areas, with higher levels of forced labour occurring in remote areas. There were particular problems in preventing the use of forced labour by the military, especially in the border areas. The problem was aggravated because of the reprisals against those who denounced forced labour practices and the lack of trust in the police and the judicial system. In conclusion, persistent violations of this basic human right continued in the country, and persons who endeavoured to make use of their trade union rights were imprisoned. The exaction of forced labour by the military was particularly common. He therefore called upon the Government to take all the necessary measures to abolish the practice of forced labour and to provide full protection to all those who were subjected to forced labour. All those who exacted forced labour should be brought to the courts and those found guilty should be punished. All these special measures needed to be taken as rapidly as possible, and not as part of an extremely slow step-by-step process.

The Worker member of the Republic of Korea, on behalf of the Worker members, citing findings of the High-Level Team, a communication of the ICFTU respecting the Myanmar case as well as the conclusions of the Committee of Experts, noted several human rights violations by the Myanmar military. He stated that some of the most serious human rights abuses had occurred in the context of forced portering, wherein civilians, including children and ranging in age from 15 to 60, had reportedly been abducted and pressed into service for the military. He noted that while porters usually carried supplies for soldiers on patrols, they had also been placed at the head of columns to detonate mines and spring ambushes, and were also used as "human shields" in combat. He pointed out that porters were also subject to constant physical abuse and that many of them had witnessed other porters being killed by the troops they served.

The speaker referred to observations by NGOs indicating that a total of four days per family, per month measure was less a ceiling than a floor and that during the dry season the Rohingyas were forced to work on average about one week a month, sometimes ten days or two weeks. With respect to development projects involving forced labour, he noted that beatings, torture and summary executions were commonplace abuses of human rights, citing in particular reports of women being raped by soldiers and of a woman killed for having stopped work to feed her baby. Additionally, he cited the 2001 ICFTU Annual Survey on Violations of Trade Union Rights which indicated that labour and human rights abuses continued unabated.

In conclusion, he stated that the Government of Myanmar must provide genuine credible evidence of progress on the forced labour issue as an absolute precondition to consideration of a shift in ILO measures under article 33 of the ILO Constitution, and expressed his continued support of the NLD.

The Worker member of India expressed indignation and anguish with regard to the continued violation of Convention No. 29 by the military government of Myanmar. He noted that the Village Act and Towns Act of 1907, which empower the authorities to requisition labour without wages, were a part of Myanmar's colonial legacy, and expressed regret that it had chosen to maintain these laws - to the detriment of its people and their human rights. He noted that the problem of forced labour persists to this day, in spite of amendments to the Village Act and Towns Act, and urged the ILO to pursue further discussion with the Government to see an end to the matter. On this point, however, he emphasized that the promotion of international labour standards should not be linked to the question of maintaining trade and commerce with Myanmar, as doing so would prove counter-productive and act against the interests of that nation's workers. He concluded by stating that any actions taken with respect to this matter should be free of interference from the International Monetary Fund, the World Bank and the World Trade Organization.

The Worker member of Indonesia, on behalf of the Worker members, stated that, based on reports from the Federation of Trade Unions of Burma (FTUB), NGO EarthRights International, and other documents, he regretted to say that the Government of Myanmar had not made any significant progress in abolishing forced labour in Myanmar.

He drew attention to the issue of ethnic nationality in forced labour which mostly happened on the Myanmar border in states such as Karen, Mon, Chin, and the Indian border Tavoy township. The military often forced people to work as unpaid porters or work for military purposes. He gave the example of an ethnic Karen civilian who was forced to labour several times for the military - carrying very heavy military equipment for an extended period with little rest and no provisions for food or water. He also described the disruption and trauma to the villagers as a whole caused by the need for males to flee to avoid being forced to labour. Villagers in Karen State had received the news about General Khin Nyunt's order prohibiting forced labour, but they thought that the prohibition did not concern their region because the army still practised forced labour as usual. The speaker recalled that, although the Governing Body at its 282nd Session in November 2001, requested that the Order supplementing Order No. 1/99 be disseminated through major ethnic languages to enable people to understand the ongoing efforts which had been made, the High-Level Team noted that the orders had not been disseminated via the mass media, and had been distributed only in English and Burmese, but not in any of the other major ethnic languages spoken in the country, causing misunderstanding.

The speaker concluded by stating that there was no indication that the Government of Myanmar had taken specific and serious action on this matter. Therefore, he insisted that the Government of Myanmar give a reasonable explanation of action taken so far in realizing the recommendations formulated by the Commission of Inquiry, which it had accepted. He also called on the ILO constituents to continue to take concrete action to eliminate trade and assistance which may contribute to the practice of forced labour discrimination against ethnic minorities.

The Government member of Japan expressed his appreciation to the Director-General for his efforts to strengthen dialogue and cooperation with the Government of Myanmar and welcomed the agreement between the ILO and the Government of Myanmar on the establishment of an ILO Liaison Officer. He also welcomed the appointment of Mr. Leon de Riedmatten of the Centre for Humanitarian Dialogue as an interim Liaison Officer, and expressed satisfaction with his report.

The speaker considered that it was of the utmost importance for the Government of Myanmar to take appropriate measures in response to the recommendations of the Commission of Inquiry, so as to meet the expectations of ILO Members which have been cultivated over the last two years. He expected that the first step of the Government of Myanmar would be a cornerstone for working on the establishment of continued and effective ILO representation in Myanmar. He encouraged the authority in its efforts to ensure the prompt and effective elimination of forced labour, and referred to the lifting of restrictions on the movement of Daw Aung San Suu Kyi on 6 May 2002, which could create a favourable environment for facilitating democratization and national reconciliation and contribute to the elimination of forced labour. The speaker hoped that it would be possible for the Government of Myanmar and the ILO to work together resolutely, and he strongly hoped that a formal Liaison Officer would be appointed and fielded soon and would fulfil his or her duty of continued cooperation to eradicate forced labour.

The speaker also stated that the relationship between Japan and Myanmar did not and would not contain any element that induced, directly or indirectly, forced labour, nor did any assistance projects undertaken by Japan, which were concentrated in the area of basic human needs. This included the rehabilitation of the Baluchaung No. 2 hydroelectric power plant which produced 24 per cent of the total electricity in the country and was in need of repair. The speaker recalled that the Special Representative of the United Nations Secretary General had acknowledged the need for further humanitarian assistance to Myanmar, especially in the areas of health, education, electric power and food aid. Lastly, the speaker stated that, should it be the case that the democratization process was further accelerated, the Government of Japan would support the efforts towards nation-building in a more active manner.

In reply to comments of the Worker member of Japan, he stated that the Government of Japan strictly observed its obligations under applicable international instruments and Japan's laws and regulations in the treatment of foreign nationals in Japan.

The Government member of the United States stated that the situation of forced labour in Myanmar was a long-standing concern of her Government. She welcomed the positive steps taken by the Myanmar authorities since this Committee's special sitting last year, and particularly in the weeks since the March 2002 Governing Body. There had been numerous indications of good faith intentions, and a number of important procedural measures had been initiated. Nonetheless, the fact remained that, at the end of the day, the very specific, substantive recommendations of the Commission of Inquiry had still not been fully implemented: the Village Act and the Towns Act still needed to be brought into conformity with Convention No. 29, as the orders promulgated thus far were not sufficient; clear, detailed and adequately publicized instructions were still required to ensure that forced labour was not imposed in practice, especially by the military; and penalties for the exaction of forced labour still needed to be strictly enforced by means of thorough investigation, prosecution and appropriate punishment of those found guilty.

The Committee of Experts, the High-Level Team, and most recently, the Liaison Officer ad interim had made detailed suggestions as to how the Commission of Inquiry's recommendations would be effectively implemented. The Myanmar authorities should act upon these suggestions without delay. In particular, it was critical to proceed immediately with the establishment of full and effective permanent ILO representation in Myanmar. In addition, the establishment of a fully independent and impartial ombudsperson to investigate allegations of forced labour was a necessary complement to the other monitoring and enforcement machinery currently in place. The controversy over the deaths of seven villagers in the Shan State demonstrated the need for this type of independent, external investigation.

Lastly, the speaker stressed that the objective of the ILO was not to punish Myanmar, but rather to help Myanmar, in a constructive way, to eradicate a practice that was an offence to human dignity and that all ILO Members agreed must not be tolerated. Until such time as all three recommendations of the Commission of Inquiry had been fully implemented, it was the obligation of the International Labour Organization to maintain the measures adopted by the 88th Session of the Conference in accordance with article 33 of the ILO Constitution.

The Government member of India stated that he had carefully examined the agenda documents and the information available before the Committee. He welcomed the appointment of Mr. Leon de Riedmatten as the interim ILO Liaison Officer pending the appointment of a full-time ILO Liaison Officer, pursuant to the agreement reached between the Government of Myanmar and the ILO. He noted with satisfaction the activities carried out by him to date as well as the full cooperation extended by the Government of Myanmar. India, as a matter of principle, had all along supported adoption of a promotional approach by the ILO in regard to matters falling within its mandate and had consequently been opposed to a punitive approach to further the ILO's aims. It was convinced that the ILO's objectives could best be promoted through dialogue, cooperation and technical assistance. The speaker concluded by noting the full cooperation extended by the Government of Myanmar which he hoped would continue, as well as the agreement reached between the ILO and Myanmar. He encouraged both sides to continue their dialogue to resolve outstanding issues with a view to the removal of the measures taken against Myanmar.

The Employer member of Japan reiterated that the employers are optimists but realists and expressed his sincere hope that forced labour in Myanmar would come to an end as soon as possible. He expressed his appreciation for the efforts made by the Director-General and his staff in this issue. He quoted from document C. App./D.6(Corr.), paragraph 28, which gave general indications of various actions the Liaison Officer could implement, and stated that the ILO was competent to take on such tasks. Lastly, he emphasized the importance of broad tripartite involvement and technical cooperation to bring forced labour to an end in Myanmar.

The Employer members noted the serious and comprehensive debate, which was necessary because of the issues involved. The speaker noted signs of progress, such as procedures established for cooperation between the Government of Myanmar and the ILO, and various administrative measures taken. It was very important to have technical cooperation to make progress. However, as to the substance of the case, small steps had been taken but larger ones were needed. Many obstacles still existed, such as the size of the country, its closed nature, the involvement of the authorities at many levels, and the fact that forced labour was a long-standing practice that would take time to eliminate.

An ILO permanent presence in Myanmar was crucial until the problem was solved. The measures cited in the Liaison Officer's report also needed to be taken, such as employment promotion. The Government had to see that forced labour harmed not only the victims, but also the country as a whole, through lost opportunities and a poor image in the international community. In general, the case should be viewed with some rays of light, but a great deal of darkness still remained. The conclusions of the Conference Committee had to reflect both the progress already achieved and the big problems remaining in the complete abolition of forced labour, in order to stimulate further dialogue with the Government of Myanmar towards a resolution of the problem.

The Government member of Myanmar stated that he had listened with great interest to the discussion, and appreciated the statements of speakers, in particular those from the ASEAN States, who had welcomed the changes undertaken.

Regarding calls for an ombudsperson, the speaker stated that Myanmar already had a system to deal with complaints - the Miscellaneous Legal Issues Division of the Attorney-General. This body was charged by law with bringing complaints to the attention of the relevant authorities to protect the interests of the people. Officials were obliged to examine complaints in conformity with the Attorney-General's guidelines. The speaker also noted that there were 28 new sub-townships with assistant township officers empowered to deal with grievances, including complaints of forced labour. Such a system would be more effective than an ombudsperson due to the remoteness of many areas of the country. Furthermore, the interim Liaison Officer had held wide discussions on the issues.

The speaker stated that the case of the seven villagers who were murdered had been investigated and that the perpetrators had been found to be terrorists; furthermore, the case was not related to forced labour. Discussions with Mr. de Riedmatten had addressed this issue.

The speaker objected to Mr. Maung-Maung of the Federation of Trade Unions of Burma having been allowed to take the floor. The speaker alleged that Mr. Maung-Maung was a terrorist and criminal, and therefore letting him take the floor was an abuse of this ILO forum.

The speaker expressed his desire to continue dialogue and cooperation between Myanmar and the ILO, which had proven to be fruitful. He stressed that the ILO should encourage the Government to do its utmost, but it would not be helpful if efforts were not recognized. He expected that the Conference Committee would reciprocate and respond positively to the Government's show of good will.

The Worker members said that the very high level of interest in this case by the members of the three groups of the Committee was sufficient illustration that the situation in Myanmar would need to be kept under examination for a long time to come and, in any event, until real progress had been noted at the three levels referred to by the Commission of Inquiry and the High-Level Team. Until the legislation in Myanmar was brought into conformity with Convention No. 29, the practice of forced labour had disappeared and, finally, effective action was taken against those found guilty of exacting forced labour, the pressure on the country would have to be maintained. The Worker members believed that if there existed in Myanmar real organizations of civil society, and particularly strong and independent workers' organizations, as provided for in Convention No. 87, which had been ratified by Myanmar, such organizations could provide the victims of forced labour with the support that they needed to be able to avail themselves of the recourse available to them to defend their recognized rights.

Finally, in view of the comments made by the Government member of Myanmar addressed to a Worker member of the Committee, Mr. Maung-Maung, the Worker members recalled that, in accordance with Convention No. 87, which had been ratified by Myanmar, trade union organizations were free to designate their representatives; they drew the attention of the Conference Committee to threats to the physical safety of the designated union representative.

(not reproduced:

Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29) by Myanmar,

Other developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29),

Report of the High-Level Team (Governing Body documents GB.282/4 and GB./282/4/Appendices),

Minutes of the discussion in the Governing Body (at its 282nd Session) on developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) (Governing Body document GB.282/PV),

Report of the ILO technical cooperation mission to Myanmar (19-25 February 2002) (Governing Body document GB.283/5/2),

Further developments following the return of the ILO technical cooperation mission (Governing Body document GB.283/5/3).)

After noting the information provided by the Government representative, the Committee noted with deep concern the observation of the Committee of Experts evaluating the effect given to the three recommendations of the Commission of Inquiry, taking into account the information contained in the report of the High-Level Team. With regard in the first place to the Village Act and the Towns Act, which had not yet been amended, the Committee of Experts had noted that Order No. 1/99, as supplemented, had been given considerable publicity and may momentarily have affected certain civil infrastructure projects, but had not brought an end to the exaction of forced labour, particularly by the military. The specific and practical instructions and the budgetary provisions that were lacking had not yet been adopted, or even prepared, with a view to replacing in practice recourse to forced labour by the offer of decent wages and conditions of employment to make it possible to attract the necessary labour freely. Finally, no sanction had been imposed under section 374 of the Penal Code or any other provision, in accordance with Article 25 of the Convention, on those responsible for the exaction of forced labour, while the means of recourse available to complainants were not effective.

The Committee also noted the information on the High Level Team and its follow-up contained in the supplementary report submitted to the Committee. It noted that as a result of the cooperation of the authorities, it was possible for the first time to have available, through this report, an evaluation conducted freely in the country and on the other side of the border on the impact of the new regulations on the real situation of forced labour throughout the country. It also welcomed the fact that one of the recommendations of the High-Level Team intended to ensure the presence of the ILO in Myanmar had been followed up and that the ILO's presence had already been ensured in practice through the appointment of the interim Liaison Officer and the report that he had already been able to produce. However, it emphasized that this presence was only a means and would have no significance unless the future Liaison Officer rapidly had the capacity and administrative support, as well as the facilities, to conduct the various activities that could contribute to the effective implementation of the prohibition of forced labour. These facilities needed to include freedom of movement and access and required the cooperation of all the authorities, including the military. The Committee further regretted that no practical effect had yet been given to the other important proposals made by the High-Level Team with regard, on the one hand, to the murder of victims of forced labour in Shan State and, on the other hand, the establishment of an independent and credible form of mediation to offer a new means of recourse in which future victims could have confidence. Such an institution was particularly necessary in the absence of freedom of association, the significance of which for the situation of forced labour had been emphasized by the High-Level Team. The Committee also regretted that the provisions prohibiting forced labour had not been disseminated more broadly through all channels and in all appropriate languages, as called for by the High-Level Team. In general terms, the Committee emphasized the need for real, rapid and verifiable progress, not only at the procedural level, but also and in particular at the level of the persistent reality of forced labour and the widespread impunity of those responsible, and particularly the military. It encouraged the Office and the Director-General to pursue their efforts resolutely on all these issues, as well as their dialogue with the Government and all the parties concerned, and to report to the Governing Body, which would be responsible for examining, as appropriate, the conclusions to be drawn from the progress or lack of progress at its session in November 2002.

In this respect, the Committee noted that the Government representative, at the end of the discussions, had expressed the will of his Government to discharge its international obligations and to pursue the dialogue with the ILO.

Finally, it recalled that the Government would have to supply a detailed report for examination by the Committee of Experts at its next session on all the measures adopted to ensure compliance with the Convention in law and practice.

(not reproduced:

Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29) by Myanmar,

Other developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29),

Report of the High-Level Team (Governing Body documents GB.282/4 and GB./282/4/Appendices),

Minutes of the discussion in the Governing Body (at its 282nd Session) on developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) (Governing Body document GB.282/PV),

Report of the ILO technical cooperation mission to Myanmar (19-25 February 2002) (Governing Body document GB.283/5/2),

Further developments following the return of the ILO technical cooperation mission (Governing Body document GB.283/5/3).)

Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

Special sitting concerning the application by Myanmar of the Forced Labour Convention, 1930 (No. 29), in application of the resolution adopted by the International Labour Conference at its 88th (2000) Session

A. Record of the discussion in the Committee on the Application of Standards

The Chairperson recalled that the item which was being discussed at the present sitting of the Committee had been placed on the Committee's agenda pursuant to paragraph 1(a) of the resolution adopted by the Conference at its 88th Session, under article 33 of the ILO Constitution, with a view to the adoption of measures to ensure compliance with the recommendations of the Commission of Inquiry established to examine the observation of the Forced Labour Convention, 1930 (No. 29) in Myanmar. The resolution of the Conference stated that: "The question of the implementation of the Commission of Inquiry's recommendations and of the application of Convention No. 29 by Myanmar should be discussed at future sessions of the International Labour Conference at a sitting of the Committee on the Application of Standards specially set aside for the purpose, so long as this Member has not been shown to have fulfilled its obligations."

For the examination of this case, the Committee had before it the following documents:

(1) the observation of the Committee of Experts on the application of Convention No. 29 by Myanmar; and

(2) on the one hand, document D.6 (containing the document GB.280/6, GB.280/6 (Add. 1) and GB.280/6 (Add. 2) (March 2001) regarding item 6 of the agenda of the Governing Body on "Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)" and the provisional minutes of the discussion of this item), and, on the other hand, document D.7 (Arrangements for an objective assessment of the situation of forced labour following measures taken by the Myanmar Government), which had been submitted to the Committee at the request of the Governing Body. Annex 5 to document D.7 contained the text of an understanding for an objective assessment to be carried out on how the legislative, executive and administrative measures reported by the Government were being applied in practice. This understanding made direct reference to the observation of the Committee of Experts.

A Government representative of Myanmar welcomed the general feeling that the situation surrounding the issue of Myanmar had radically changed and that the atmosphere in the Conference Committee had also changed a great deal from the atmosphere that had prevailed at the 88th Session of the Conference in June 2000 and the 279th Session of the Governing Body in November 2000. There was now much optimism and positive outlook shared by most of the member States and delegates on the Committee. This atmosphere of optimism and the positive outlook had been generated by a very important development, namely the agreement between the Government of Myanmar and the ILO on the "modalities of the objective assessment", which was the outcome of the visit of the ILO Team to Myanmar the previous month.

He reviewed the process that had now culminated in the agreement on the modalities of the objective assessment. The Government of Myanmar had already put in place a comprehensive framework of legislative, executive and administrative measures to ensure that there was no practice of forced labour in Myanmar. In addition, the Order supplementing Order No. 1/99, issued on 27 October 2000, clearly stipulated that the use of forced labour was illegal and that it was an offence under the existing laws of the Union of Myanmar. It directed responsible persons, including members of the local authorities, members of the armed forces, members of the police force and other public personnel, down to the village and ward levels, not to requisition forced labour or involuntary service. It also clearly set out the legal consequences for breach of the Order by explicitly stipulating that any person, including local authorities, members of the armed forces, members of the police force and other public personnel would have action taken against them under Section 374 of the Penal Code in consequence of such a breach. Moreover, Secretary (1) of the State Peace and Development Council had himself issued a directive on 1 November 2000 to all chairmen of the State and Divisional Peace and Development Councils in all regions of the country prohibiting the requisitioning of forced labour. National implementation measures and national monitoring activities were also being continued.

He emphasized that, at the 279th Session of the Governing Body, most member States and delegates had recognized the concrete measures taken by the Government of Myanmar. However, the issue of "objective assessment" had turned out to be a sticking point. The Government of Myanmar had made a generous offer to receive an ILO Team, either based in Bangkok or in Geneva. At that time, there had been differences of opinion on this issue. He said that what had happened at the 279th Session of the Governing Body had been most unfortunate. Nevertheless, he reaffirmed his belief in the process of engagement, dialogue and cooperation as a means of resolving the issues. For that reason, Myanmar had entered into an engagement with the Director-General of the ILO. On 22 March 2001, the Deputy Minister for Foreign Affairs had called on the Director-General of the ILO, on his way to attend an international conference in South America, and had held exploratory discussions on the modalities of the objective assessment. In the course of the discussion, the Deputy Minister had informed the Director-General of the ILO that the Government of Myanmar had designated the Permanent Representative of the Union of Myanmar in Geneva as a contact point to conduct discussions with the Director-General of the ILO on the modalities of the objective assessment. Accordingly, the Government representative had himself conducted wide-ranging discussions with the Director-General of the ILO on this matter. Subsequently, on 4 June 2001, the Minister at the Office of the Prime Minister, attending the 89th Session of the Conference, had called on the Director-General of the ILO and had held fruitful discussions on matters of mutual interest.

He recalled that document D.7 provided full information concerning the visit of the ILO Team the previous month. The ILO Team had visited Myanmar from 17 to 19 May 2001. The outcome of the visit had been the important agreement between the Government of Myanmar and the ILO on the "modalities of the objective assessment". Under the agreement, a High-Level Team, led by an internationally respected person, would go to Myanmar on an objective assessment mission in September 2001.

He expressed the belief that the measures taken by the Government of Myanmar were concrete, comprehensive and effective. He recalled that the ILO considered that there ought to be an objective assessment of these measures to lend them international credibility and confidence. He therefore reaffirmed that the Government of Myanmar had not only put in place a comprehensive framework of legislative, executive and administrative measures, but had also accepted to receive the objective assessment by a High-Level Team. Things were therefore moving forward in the right direction.

He warned, however, that the value of the application of sanctions was highly questionable. He expressed the belief that the best sanctions were those that were never used and never carried out. Sanctions were like nuclear weapons. Their value lay in their deterrent effect, not in their actual use. As a matter of principle, his Government opposed the application of sanctions against a member State as a means of resolving an issue. Now that there was an agreement between the Government of Myanmar and the ILO on the modalities of the objective assessment, the difficulties to which he had referred had been overcome.

He urged the Committee not to look back on the past, but to look to the future and move forward to resolve the issue step by step. Most member States and delegates had recognized that the Government had the genuine political will and commitment to resolve the issue of the alleged use of forced labour. No one could deny that the agreement on the modalities of the objective assessment constituted a significant step. Indeed, it was a breakthrough. In view of this very important positive development, he urged the Committee to recommend to the 282nd Session of the Governing Body that it should review the measures taken under article 33 of the ILO Constitution in the light of the outcome of the visit of the High-Level Team, with a view to removing those measures.

The Worker members stated that the situation of forced labour in Myanmar concerned so many people that the Committee could discuss this case for three days, or even a week. It was essential that this case, as with all other cases, be seriously reviewed, according to the procedures of the Conference Committee. They noted that, as with the discussion on individual cases, it was important to know the position of the Employer members, even though they were convinced that in this particular situation they shared the same views.

They deplored the fact that the case of Myanmar was once again before the Committee. Unfortunately, this case already had a long history, which had, for the first time in the existence of the ILO, required the use of a special procedure (article 33 of the ILO Constitution). They strongly regretted this situation, which was due to the persistence of unacceptable forced labour practices in Myanmar. They stated that they would continue to place this matter on the agenda of the ILO supervisory bodies as long as the recommendations made by the Commission of Inquiry were not implemented. With regard to the Commission of Inquiry, the Government of Myanmar was required to ensure that: (a) the legislation was brought into conformity with the provisions of Convention No. 29; (b) that practice was brought into line with the provisions of Convention No. 29, in other words, that no compulsory or forced labour could be imposed by the authorities; and (c) that sanctions were provided for and applied to those found guilty of violating the prohibition against forced labour.

They added that they did not intend to review the history of this case, but recalled the serious, persistent and systematic violations of Convention No. 29 on forced labour which existed in Myanmar. They stated that they had not invented these violations and recalled that there was abundant proof of these practices.

The Worker members added that the Committee was once again discussing this very serious case of forced labour after a two-year hiatus, during which time the severity of the situation and the chronic nature of the Government's lack of cooperation and compliance had driven the case to unprecedented levels of the ILO's supervisory machinery. The Committee was acting on the resolution adopted under article 33 of the ILO's Constitution at last year's Conference that charged it with keeping the spotlight on the practice of forced labour in Burma. The Committee's special session today was an essential part of the ILO's efforts to compel the Government to fulfil its treaty obligations under Convention No. 29 and to end the suffering of the tens of thousands of victims of forced labour. The Worker members considered this to be a very important responsibility.

The Worker members emphasized at the outset that, notwithstanding the comments made by the Government representative, only a few months ago the Government had continued to deny the existence of forced labour in the country. In its 9 March 2001 statement to the United Nations Commission on Human Rights, the representative of the Permanent Mission of Myanmar in Geneva had stated that "Myanmar nationals believe that the contribution of labour is both meritorious and conducive to mental and physical well-being. Accordingly, the local populace contribute labour in village community works (...) The populace, who are contributing labour, look fresh and happy with full of mirth and laughter and in festive mood. They do not at all look unhappy; nor show signs of being forced to work against their will." The Worker members noted that such statements by the Government had been a staple in past Committee discussions. Further, the "conciliatory" tone taken by the Government representative did not in any way concede that a problem existed or that one had ever existed.

Not surprisingly, the Committee of Experts had structured its rather extensive comments this year in accordance with the three recommendations made by the Commission of Inquiry. The first section of the Committee of Experts' comments focused on the legal aspects of ending forced labour by addressing the issue of amending the relevant legislation. The second section focused on the measures taken, or rather not taken, to end the continuing practice of forced labour by the regime, as well as the available information on the actual practice. Finally, the report contained a third section on enforcement, in order to determine whether any actions had been taken to hold anyone accountable for using forced labour under the Penal Code, or in other words whether anyone had been punished. The answer to those questions, according to the Committee of Experts, was a resounding "no."

The Worker members emphasized that all three aspects of the Commission of Inquiry's recommendations must be implemented in full before any consideration could be given to ending the measures adopted by last year's Conference under article 33 of the ILO Constitution. This meant that the legal framework providing for the widespread use of forced labour had to be eradicated, the practice itself had to be demonstrably eliminated and all those found to be responsible for using forced labour had to be punished. Until such actions were taken, the regime had to be made to understand that the ILO would remain vigilant.

The ILO had demonstrated its willingness to assist the regime in any and every way possible to implement fully the recommendations of the Commission of Inquiry. But the bottom line had to be that the only avenue available to the regime, to reduce international pressure and ostracism, was the complete end of the system of forced labour, both in law and in practice, and the punishment of those responsible. The comments of the Committee of Experts demonstrated that there was still a long way to go.

In the first section of its report, the Committee of Experts once again reviewed the legal steps taken by the regime, namely the Order issued to disregard those provisions of the Village Act and the Towns Act that provided for forced labour. The Committee of Experts' view of this Order remained quite clear. Paragraph 4 of the report indicated that these orders "still reserved the exercise of powers under the relevant provisions of the Village Act and the Towns Act, which remain incompatible with the requirements of the Convention". Paragraph 6 of the report then concluded that the amendment of these two Acts sought by the Commission of Inquiry and promised by the Government for many years had not been made.

Furthermore, the first part of the second section of the Committee of Experts' report expressed the repeated concern that those most responsible for the use of forced labour, namely the military, did not appear to be affected by this Order. The Worker members had heard the Government representative's statement that the military authorities no longer made use of forced labour. The fact was, however, that the military remained somehow above the law. This had of course been the reality in the country for many decades, and until this situation was remedied, forced labour would continue.

The report devoted a few short, but extremely important paragraphs to the information available on actual practice. Paragraph 20 recalled that the documentary appendices contained in the ICFTU report of last November, representing over 1,000 pages drawn from 20 different sources, included reports, interviews of victims, over 300 forced labour orders, photographs, video recordings and other material. The report noted that the overwhelmingly large proportion of the documents concerned the period from June to November 2000. In other words, it concerned the period after the article 33 measures had been adopted at last year's Conference, leading to the November Governing Body session, when the regime and its supporters had lobbied extensively to avoid having the article 33 measures take effect. The report emphasized that an essential part of the ICFTU submission consisted of hundreds of "forced labour orders", issued mainly by the army, which were similar in kind, shape and content to the orders examined by the Commission of Inquiry and found to be authentic.

The ICFTU had issued a second report for the March 2001 Governing Body, which consisted of another 300 pages of similar documentation demonstrating that, without question, the practice continued. As reported in paragraph 66 of document D.6, the ICFTU report indicated that the authorities had used a number of methods to cover up the use of forced labour. These had included "issuing orders for villagers to attend meetings at the army camp, where they were requisitioned for forced labour, rather than issuing explicit orders for forced labour; issuing undated, unsigned and unstamped orders; demanding that written orders were returned to the issuing army personnel; using civilian authorities to requisition labour on behalf of the military; and arbitrarily arresting young, healthy persons, who after a few days in prison would be sent to work as porters for the military, dressed in army uniforms (...)".

There were other credible reports, such as a report to be issued by Amnesty International in two days, that included interviews with victims of forced labour this year. The Worker members pointed out that, when the time was taken to independently investigate whether or not forced labour was continuing, especially near ethnic border areas, it was clear that new evidence, conclusive evidence, tragic evidence continued to flow out of the country. They reminded the Committee that, according to the Commission of Inquiry and the Committee of Experts, the practices in question particularly affected farmers and the most impoverished, as well as the non-Burmese ethnic communities. It was a practice that was especially cruel and inhuman to women, who had found themselves the victims of rape and other barbarities, and to children. People, including women and children, were being used to clear minefields for the military in its continuing military action against some of the ethnic communities.

Many speakers had reminded the Committee during its general discussion that its role was to go beyond the legal analysis of the Committee of Experts and to bring a dimension of reality to the situations discussed, and this was the reality in Burma today, a reality which had existed tragically for decades, a reality so pervasive that it affected virtually every community and every family in certain parts of the country. It was a reality which persisted despite the best efforts of the ILO to compel change after many years.

With regard to the Director-General's communications to the ILO's constituent groups and the responses given to his request (contained in document D.6), the Worker members expressed their extreme disappointment over the lack of action taken by member States. Citing the example of the Japanese Government, they stated that there were even some governments that had responded to the Director-General's request by doing precisely the opposite, by enhancing their relationship with the military regime through the resumption of development assistance. The Worker members found such action to be not only unfortunate, but deplorable. They noted the statements made in defence of such actions that these governments saw the ILO, figuratively, as the north wind, while projecting themselves as the sun, arguing that both the north wind and the sun were needed to produce the changes that were desired by everyone. It was clear to the Worker members that, from the point of view of the perpetrators of forced labour, these governments were indeed the warm sun. However, they stressed that, from the point of view of the tens of thousands of victims of forced labour, from the point of view of the citizens of the country, these governments were the northern wind and it was the ILO that, to its credit, was the warm sun.

Some governments, including the United States, had given the Director-General a good explanation for their lack of action. Shortly before the Governing Body met in November 2000, the regime had begun a conversation with Ms. Daw Aung San Suu Kyi, who had been under virtual house arrest for almost a decade and remained so today. It was the view of the Worker members that the beginning of these secret talks was no coincidence, and that the actions of the ILO, especially the adoption of measures under article 33, had convinced the regime to do what it had steadfastly refused to do for over a decade. The ILO deserved credit for this.

Citing the example of the United States, the Worker members expressed their conviction that in late 2000, the United States Government had been poised to impose a ban on imports from Burma in response to the Director-General's call. The emergence of the secret talks had delayed the imposition of such a ban. There was, however, bipartisan legislation introduced in the United States Senate to ban all imports from Burma to the United States. The legislation specifically referred to the measures called for by the ILO. In addition, there was a coalition of groups in the United States that were communicating with major retail companies requesting them not to allow any apparel items produced in the country to be sold in their stores. The ILO's actions were cited in the letters to these companies. Thus far, nine companies, including a number of the larger and most well-known retailers in the United States, had given a public commitment, or strengthened a previous commitment, to keep such products out of their stores. The same could not be said, unfortunately, about many extraction industry companies which had been entrenched in the country for many years. Recently, however, resolutions had been introduced at shareholder meetings supporting disinvestment because of the widespread practice of forced labour. One of these resolutions had been supported by 22 per cent of the shareholders, a significantly large and apparently growing percentage for this type of resolution.

The Worker members noted that all those present, except perhaps the representatives of the military regime themselves, wanted talks to succeed, producing a transition back to civilian rule and the rule of law. But these talks had been going on for nine months with no apparent result. They surely could not yet be described as reconciliation talks given the fact that, as the Worker members had stated previously, Daw Aung San Suu Kyi remained under virtual house arrest. She still could not travel, nor could she consult with large groups of her supporters. Accordingly, the Worker members questioned how long member States were willing to wait, using the secret talks as a pretext for inaction, before responding to the Director-General's call. Would one year of no reported progress be sufficient, a period which would elapse before the November 2001 Governing Body meeting? When would a "decent interval" to allow these discussions to produce results become "indecent" and merely a pretext to avoid action under any circumstances? It remained clear to the Worker members that pressure had to be maintained on the regime as, in their view, any perceived weakening of international pressure would doom the talks to failure.

The Worker members reminded governments that the issue before the Committee, as it had been for almost 40 years, was not political normalization, but the eradication of forced labour inside Burma. This was the sole measure that the Committee must use to assess the effectiveness of steps being taken by the regime, and as long as there was evidence of forced labour, then the measures taken under article 33 must continue. To weaken or eliminate those measures prematurely might do irreparable damage to the ILO at a time when the ability of the ILO to enforce its own standards was being called into question.

The Worker members noted that, in a recent development, the regime had agreed to accept a High-Level Team into the country in September 2001 to conduct an assessment of the extent to which forced labour had been eliminated. The Worker members viewed this mission as a potentially positive, if somewhat flawed, first step and hoped that it would develop into an effective and if necessary long-term programme to eliminate the widespread use of forced labour in that country once and for all. But this was only a first step and, in reality, only a baby step, not a radical change, as claimed by the Government. They recalled the (unfounded) rumours at last year's Conference and at the November Governing Body meeting that, in order to avoid the measures under article 33 coming into effect, the regime was willing to accept a permanent ILO presence inside the country to monitor the elimination of forced labour. Now was not the time to debate the pros and cons of such an idea, but the Worker members emphasized that what was being proposed was not even close to what had been discussed last year.

The Worker members affirmed that they would monitor closely the results of the mission, and hoped it would bring positive results. But clearly this latest gesture by the regime was only a very small beginning. And there was already evidence emerging of the regime instructing people to deny the existence of forced labour. The Worker members had seen one report that just last week an SPDC township chairman in Mon State had called a gathering of villagers to inform them that foreigners might soon be coming to the area to ask questions about forced labour. They had reportedly been instructed to deny any forced labour and to deny paying the military to avoid forced labour. Such evidence would, of course, be turned over to the ILO.

The effectiveness of the ILO regarding this long-standing case of forced labour must not be measured in baby steps. It must only be measured by its ability, our ability, to compel this member State to do what it clearly had never wanted to do - that is, to live up to its treaty obligations under Convention No. 29. While some governments seemed content with gestures by the regime even at this late date, the tragic reality was that, even now, thousands of men, women and children were poised to become the latest victims of the most unspeakable forms of forced labour. This was the reality that the Committee had to confront.

In light of the preceding developments, the Worker members indicated that the problem of forced labour in Burma was complex, due to its very nature, its diversity, its scope and size. The situation was one which weighed heavily on the entire population of Burma/Myanmar. It had had terrible consequences for the country's inhabitants, including on their social life. It was detrimental to employment, as it kept people from being able to have "normal" jobs, particularly due to the problem of mass requisitioning by the authorities. The situation was consequently disastrous for the economy of the entire country.

The violations of Convention No. 29 were widespread, systematic and institutionalized, in national legislation and in practice. The military and civil authorities systematically resorted to forced labour for a series of tasks and services. Thousands of people were requisitioned to carry out this work. From a legal standpoint, most of the violations of the Convention were based on the Towns Act and the Villages Act. As previously indicated, forced or compulsory labour was imposed by the authorities at all levels and especially by the military.

The Worker members considered that, after having described the problem, it was appropriate to work towards finding possible solutions. To this end, they noted the promises made by the Government including the declarations made by the Government representative, according to which progress had been achieved and improvements made. They wished to remind the Government that these initiatives and changes needed to be evaluated by the ILO. It was necessary for the ILO to be able to evaluate the practical implementation and real impact of the measures taken by the Government in an objective and impartial manner.

The Worker members considered that it was essential for the ILO to be able to send missions to the field regularly in order to guarantee an objective evaluation of the situation. Once this first condition had been met, the mission Team would need to be composed of individuals of a high level, with outstanding expertise in the subject matter and familiar with the region and the situation of the country. One of the members of the Commission of Inquiry should take part in the mission.

The Worker members stressed that, as Burma was a large country, it was not possible to visit all regions in a short period of time, particularly if there were not many members of the mission Team. It would be desirable for the Team to be large enough to distribute the work geographically and essential for the mission members to have contacts, not only in the country itself, but also in neighbouring regions. They emphasized that, owing to its existence in many forms, the problem of forced labour was widespread and that the mission must be able to examine all the forms of forced labour which existed, which was another reason to send a large mission.

They considered that, in order to ensure an effective outcome, the members of the mission should have access to all information, regions and persons they deemed it necessary to consult, a requirement which would probably be the greatest problem the mission faced. They asked that every possible measure be implemented in order to avoid, to the greatest extent possible, having any limitations imposed on the mission's investigations. The subject of security must not be a pretext for restricting the mission's access to regions in conflict. It was important that interpreters be placed at the disposal of the mission, not only for translation from Burmese, but also from the languages of the ethnic minorities. It was the ethnic minorities who were the primary victims of forced labour in the country. In their view, the most important condition concerned the protection of witnesses. It was essential to guarantee effective protection for persons possessing essential information and whom the mission might contact. This protection must be guaranteed not only at the time of the contact, but also and even more importantly, after contact. Creative means might be required to find the means to guarantee this protection. Finally, careful thought should be given to deciding the best time for the mission to take place, taking the climatic conditions into account.

The Government of Burma wished to convince the Conference Committee of its willingness to improve the present situation with a view to abolishing forced labour. The Worker members expressed the hope that, in accepting a mission with the mandate described above, the Government would prove its political will. In any event, such a mission would not mark the end of this case. It represented only the beginning of a process, one step towards the improvement of the forced labour situation in the country. The Worker members recalled a suggestion made by a colleague during the general discussion to the effect that the Committee on the Application of Standards was a patient committee. They therefore undertook to follow the development of this particular case closely and to regularly request that the Government take measures until such time as it actually took action. The Committee would insist on this point until the recommendations of the Commission of Inquiry had been implemented and forced labour in Burma abolished. The Worker members informed the Committee that they would urge that missions be sent to Burma at different times of the year until this objective had been achieved.

The Worker members took careful note of document D.9, Memorandum on the understanding between the Myanmar Government and the ILO on the modalities of objective assessment on Myanmar's observance of ILO Convention No. 29 (prohibiting forced labour), and of the statement made by the Government representative. They disagreed with the conclusions contained in that document. The Worker members insisted that the ILO continue on the same path and that its objective remain the same, namely the implementation of the recommendations by the Commission of Inquiry. The situation must be evaluated by the ILO in a permanent objective manner. Only on the basis of such objective evaluation could the ILO draw conclusions in respect of this case.

The Employer members thanked the Government representative of Myanmar for his statement. They noted that, although he had predicted a certain optimism, it remained to be seen whether this prediction was premature.

The Employer members considered this to be an unusual case, not because of the circumstances involved or the interest it generated. Rather, it was unusual due to the serious nature of the violations of the most ratified of all Conventions, the length of time the situation of grave violations of human rights had persisted, and the stubborn refusal of the Government over many years to comply with its international obligations under Convention No. 29. This case had been examined by the ILO supervisory system over a period of years. The Employer members noted that the ILO standards system was rightly considered the most efficient in the United Nations system, pointing out that this two-tiered system had been introduced 75 years ago this year. As always, the Committee's deliberations were based upon the report of the Committee of Experts. The report once again contained a precise description of the situation in Myanmar and its evolution over the past three years. They noted that the Committee of Experts had examined this case almost every year since 1991 and time and again had reported on multiple and serious violations of the Convention. Similarly, the Conference Committee had examined this issue four times since 1992 and had repeatedly expressed its concern at the seriousness of the violations of the Convention in special paragraphs entitled "continuous failure to implement" in 1995, 1996 and 1997.

The Employer members recalled that many people in Myanmar were forced to engage in forced labour and that this practice affected women, young people and older persons, who were required by local and state authorities, both military and civilian, to carry out forced labour. This forced labour included transporting materials for the armed forces, constructing and maintaining military camps, building roads and participating in industrial and agricultural projects. This was heavy labour which many people were forced to carry out. For many years, the Government had denied these violations of the Convention, referring inter alia to a tradition under which such labour was considered as community work and usual.

The Employer members noted that the July 1998 report of the Commission of Inquiry established by the ILO had found that this widespread practice of grave violations of the Convention was based mainly on the Towns Act and the Villages Act. Amendment of these Acts had long been called for and the Commission of Inquiry had asked that this be done by 1 May 1999. A government Order of 14 May 1999 had not made the requested changes. In parallel with amendment of the law, profound changes also needed to be made to the practice in the country through clear and specific (and not secret) orders to all the authorities, including the military. Finally, Section 374 of the Penal Code needed to be strictly enforced. Although it provided for penalties for the imposition of forced labour, it was never applied in practice.

The Employer members recalled that the recommendations of the Commission of Inquiry had been taken up by the Governing Body and the Conference Committee and that both bodies had demanded repeatedly that the Government comply with them. In the absence of sufficient noticeable progress, last year's International Labour Conference, at the recommendation of the Governing Body, had adopted its resolution under article 33 of the ILO Constitution. The resolution demanded that Myanmar implement fully the recommendations of the Commission of Inquiry. All ILO bodies and member States were to be informed and review their cooperation with Myanmar. The same applied to the United Nations and the specialized agencies. Further developments were to be discussed in the Conference Committee.

The measures mentioned in the resolution had come into effect on 30 November 2000, after the Governing Body had determined that the measures taken or announced by the Government until that date had been insufficient. At its November 2000 session, the Governing Body had examined the Government's Order of 27 October 2000, supplementing the May 1999 Order to eliminate the use of forced labour. An ILO technical cooperation team had visited the country and recommended that this be supplemented with specific orders or directives. In its report this year, the Committee of Experts had called for a detailed list of such specific orders or directives. Only in this way could enforcement of the prohibition of forced labour be achieved in practice. There had then been an exchange of correspondence between the Director-General and the Myanmar Government in which the Government had indicated its willingness to comply with the recommendations of the Commission of Inquiry. The Employer members referred to documents D.6 and D.7, which contained further details in this regard.

The Employer members indicated in the first place that over a period of years they had followed the case of Myanmar with concern. They stressed the seriousness of the issue of forced labour and added that there should be no doubt that the Employer members considered the observance of these fundamental principles to be crucial, and particularly the principles contained in Convention No. 29.

The Employer members recalled that, in November 2000, under the authority delegated to it by the International Labour Conference, the Governing Body had determined that the resolution under article 33 of the ILO Constitution should enter into force. At the same time, the Governing Body had requested the Director-General to continue his cooperation with the Government of Myanmar to promote the full implementation of the Commission of Inquiry's recommendations. The Employer members did not consider that article 33 was the only means to be adopted. They were also concerned to resolve the core of the problem which had given rise to the application of article 33 in order to put an end to forced labour. Moreover, they indicated that the contacts with the Government of Myanmar continued to demonstrate that the measures adopted by the Government should be verified and verifiable by the ILO, with a view to determining their implementation and the current situation in practice.

They recalled that a mission had visited Yangon from 17 to 19 March to discuss specific details regarding the High-Level Team to be sent. As a result, it had been agreed that the Team would visit the country in September, that its members would be designated by the Director-General on the basis of their qualifications, impartiality and knowledge of the region, that the Team would have discretion in establishing its programme as well as the full authority to act and move within the territory, with all procedural guarantees and, lastly, that the Team's report would be submitted to the Governing Body in November.

The Employer members also indicated that the Committee of Experts considered that the amendment to the Village and Towns Acts of 27 October 2000 could form a basis for observance of the Convention. The Employer members considered that the necessary steps should be taken to ensure the elimination in practice of forced labour imposed by the authorities, particularly by the armed forces. They stressed that the Committee was dealing with fundamental human rights deriving from the fundamental Conventions ratified by Myanmar. They were convinced that both law and practice should be clear with regard to the prohibition of the exaction of forced labour by the authorities, including the armed forces.

They indicated that they had listened carefully to the statements of the representative of the Government of Myanmar and had taken into account the comments of the Worker members. They requested that the Government of Myanmar give the High-Level Team all the cooperation necessary to enable it to carry out its functions and verify the absence of forced labour in the country. The Governing Body should receive the new report in November to enable it to present the relevant recommendations to the next International Labour Conference.

In conclusion, they stated that any progress made must be clearly demonstrable, that the Government must cooperate fully and the High-Level Team must be granted broad powers of verification. They hoped that, in the future, they would be able to confirm that the situation which had given rise to the application of article 33 had been resolved.

The Government member of Sweden, speaking on behalf of the Member States of the European Union, the Central and Eastern European countries associated with the European Union, namely the Czech Republic, Bulgaria, Estonia, Lithuania, Poland, Romania, Slovakia and Slovenia, the associated countries, Cyprus, Malta and Turkey, as well as Croatia and Norway, said that, in view of the deep concern about the situation with regard to forced labour in Myanmar, the European Union supported the resolution adopted by the Conference in June 2000 which had led to the implementation of measures in November 2000 under article 33 of the ILO Constitution. He recalled that, four years ago, the Commission of Inquiry on forced labour in Burma/Myanmar had made a series of clear recommendations to the Government on the issue, namely that the legislation should be brought into line with Convention No. 29, no more forced or compulsory labour should be imposed by the authorities in practice and that those enforcing forced labour should be brought to face criminal responsibility. The Government was therefore under an obligation to implement these recommendations fully.

On many occasions, the European Union had made it clear that, in order for the Conference to lift the measures taken under article 33 of the ILO Constitution, it needed to be assured that forced labour was completely eliminated. Only the ILO could make such an assessment. The European Union had urged the Government to resume its cooperation with the ILO and to allow a full-time ILO presence in the country with a view to verifying whether the Government had put an end to the practice of forced labour and enabling the ILO to provide technical assistance to that end. In that context, he welcomed the decision taken by the Government to resume cooperation with the ILO and noted the agreement on the modalities for an objective assessment of the practical implementation of the recommendations of the Commission of Inquiry. The High-Level Team should be allowed complete freedom of movement throughout the entire territory and he trusted that the authorities would provide any security measures necessary. The Team should also have full freedom of access to speak to anybody it wished to, including Daw Aung San Suu Kyi and other NLD leaders. The Team should decide upon the timing of its visits and on its programme. Finally, the Director-General should have complete freedom to decide on the composition of the High-Level Team. He noted the commitments entered into by the Government in that regard.

Finally, he emphasized that a three-week mission was not enough. Further steps needed to be taken. He expressed the belief that a full-time ILO presence in the country was necessary to assist the Government to implement the legislative measures it had adopted and verify their implementation. He looked forward to receiving the report of the High-Level Team following its mission in September with a view to considering its implications for further action at the Governing Body in November 2001.

The Government member of Australia, speaking on behalf of the members of the Asia-Pacific Group, noted with interest the report to the Committee on the developments since the last session of the Governing Body. The Asia-Pacific Group welcomed the decision of the Government to receive a High-Level Team appointed by the Director-General to carry out an objective assessment in September, for a period of up to three weeks, on the issue of forced labour. This was a very positive development. He particularly welcomed the fact that the Government had agreed that the ILO Team should have complete discretion to establish and implement its programme of work, meetings and visits. He expressed appreciation for the continuing efforts of all concerned, including the Director-General and the staff of the Office. He called upon the Government to continue to extend every cooperation to the ILO and the High-Level Team when it visited the country in September. He urged the members of the Conference to await the report of the Team's visit and its consideration by the Governing Body in November before deciding upon any further action.

The Government member of Malaysia, speaking on behalf of the ASEAN member States of the ILO, thanked the Director-General for his readiness to cooperate with the Government of Myanmar. He noted with appreciation the visit by the Representative of the Director-General and his team to Myanmar in May 2001 and the report of the mission, and particularly the agreement reached between the ILO and the Government on the modalities of an objective assessment of its observance of Convention No. 29. He expressed encouragement at the assurance given by the Government that it would implement the comprehensive framework of legislative, executive and administrative measures that it had put in place and the follow-up implementation measures and national monitoring activities, as well as the cooperation between the Government and the ILO. He recognized the political will of the Government to resolve the issue and to receive an ILO High-Level Team in September 2001 to carry out the objective assessment.

He concluded that the 282nd Session of the Governing Body in November 2001 should review the measures taken by the ILO under article 33 of the Constitution in the light of the outcome of the objective assessment, with a view to removing those measures. He also called upon the Government and the ILO to continue cooperation until the issue was completely resolved.

The Government member of the United States recalled that the previous year the Conference had adopted the measures recommended by the Governing Body under article 33 of the Constitution to secure compliance with the recommendations of the Commission of Inquiry. The evidence of the continuing use of forced labour in its most brutal forms was so compelling that it had been recognized that to do otherwise would be to fail in the responsibility of the Conference towards the workers of the country and to the historic mission of the ILO. Her delegation had stated on that occasion that "to do any less, to look away, to avert our gaze would be to break faith with all that we are and hope to be". At the Governing Body in November 2000, it had been decided that there was no reason to delay the implementation of the resolution, notwithstanding the fact that the authorities had taken a number of administrative measures following a last-minute ILO technical cooperation mission to the country in October 2000.

The Committee of Experts had thoroughly analysed the measures taken, as well as extensive information from other sources on the actual situation in the country. The Committee of Experts had concluded that the Government still needed to: amend the relevant legislative texts; ensure that in actual practice no more forced or compulsory labour was imposed by the authorities, and particularly the military; and strictly enforce penalties for the exaction of forced or compulsory labour. Additional evidence of the continuing use of forced labour on a large scale had been presented to the Governing Body in March 2001. This included reports of efforts by military and civilian authorities at every level to hide the extent and nature of forced labour, to weaken or nullify the effects of any orders preventing forced labour which might have been issued by superior levels, and to counter the resolution adopted by the Conference through campaigns of disinformation and deception.

She recalled that, despite its rejection of the Conference resolution, the Director-General had continued to extend cooperation to the Government in relation to Convention No. 29, as requested by the Conference and the Governing Body. She commended him for those efforts. The objective of the ILO was not to exact punishment, but to help the Government eliminate a practice which all the members of the ILO, whether or not they had ratified Convention No. 29, had agreed must be eliminated. As a result of the Director-General's efforts, the Government had now agreed to receive a High-Level Team for up to three weeks in September 2001 to carry out an objective assessment of the situation regarding forced labour. While welcoming the agreement, she called for realism about what the High-Level Team could accomplish in so short a period. The understanding reached with the Government in May 2001 was a step in the right direction. But the usefulness and effectiveness of the visit of the High-Level Team would depend on the extent to which the Government fulfilled the commitments that it had undertaken. It had agreed to accord the High-Level Team its full cooperation. Such cooperation must include, at a minimum, the right of the Team to meet with whomsoever it wished, in closed and confidential session if it so desired, and the right of all persons who wished to meet with the Team to do so without fear of retaliation against themselves or their families. Anything less would tend to cast doubt on the credibility of the Team's efforts, which would serve neither the interests of the country nor those of the ILO.

She noted that the Governing Body would listen attentively to the report of the High-Level Team in November 2001 and would also examine the report in the context of the full range of information available to the Governing Body from other sources. At that time, it would be decided what further action, if any, the ILO should take in pursuance of the objectives of the Conference resolution. Meanwhile, all the provisions of that resolution remained in effect and should continue to be implemented, including steps to ensure that the issue was discussed at the forthcoming session of the United Nations Economic and Social Council. Her Government would continue to review its relations with the country and urged others to do the same. The United States already had a strong set of sanctions in place against the country, including a ban on new investment, a ban on assistance to the military regime, denial of trade preferences and a visa ban on senior government officials. Those measures would remain in place and additional options had not been ruled out at the present time.

The Government member of South Africa emphasized it had long been his country's conviction that the existing situation in Myanmar could only change with the coming into play of new elements on the basis of an objective assessment carried out by the ILO. His Government had also indicated its unambiguous and unwavering support for the maintenance of action against the Government of Myanmar as long as it showed no willingness to change its position on forced labour. He was therefore heartened by the report before the Committee, which showed some positive gestures towards the achievement of the objective of eradicating forced labour in Myanmar. The report of the mission led by the Representative of the Director-General was quite encouraging and he commended the parties on their vision in resolving the matter.

The speaker urged the Office to remain vigilant and support the dispatch of the High-Level Team, which should be allowed complete discretion as to its activities during its work. He urged the Government of Myanmar to continue on its positive path, which he believed would lead to a conducive working environment for its people. He looked forward to examining the report of the High-Level Team in November.

The Worker member of Pakistan recalled that the resolution adopted by the Conference the previous year under article 33 of the ILO Constitution was the result of a process which dated back to the 1960s. The Committee of Experts had already raised the issue of the use of forced labour in the country in 1964, 1966 and 1967. Following the ICFTU representation under article 24 of the Constitution in 1993, and the persistent attempts by the Government to deny the evidence of forced labour, the Commission of Inquiry had been set up in 1997. In its report, following a series of hearings in which the Government refused to participate, as well as refusing to let the Commission into the country, three areas had been addressed in which measures were required to achieve compliance with Convention No. 29: the amendment of the legislation in accordance with the Convention; the adoption of measures to stop the exaction of forced or compulsory labour in practice; and the imposition of penalties on those who had perpetrated the crimes. The time limit set by the Commission for compliance with the recommendations was 1 May 1999.

This historical review underlined the fact that the series of measures envisaged by the Conference the previous year were rooted very clearly in the implementation of all three of the broad recommendations of the Commission of Inquiry. The resolution adopted in June 2000 had been the decisive factor in prompting the Government to enter into discussions with the NLD leader, Daw Aung San Suu Kyi, and to accept an ILO mission. However, until all the three areas had been irreversibly addressed with action to restore democracy and end forced labour, the measures envisaged in the resolution should be maintained and their implementation strengthened as a key instrument of pressure on the regime. He therefore commended the Director-General on the action taken and he hoped that the work of the ILO would bring relief to those who were suffering in the country. He urged the Government to implement the recommendations of the Commission of Inquiry in their letter and spirit and to give all due cooperation and support to the ILO.

The Government member of the Netherlands supported the statement made on behalf of the European Union. He added that since the decision taken by the Governing Body in November 2000 to give effect to the measures under the resolution adopted in accordance with article 33 of the ILO Constitution, his country had held tripartite consultations and reviewed its relations with the Government. Since its first response to the request for information from the Director-General, his country had taken further steps and had the intention of discouraging transactions relating to trade with and investment in the country. The Netherlands had taken note of the agreement of the Government to receive an ILO High-Level Team and took a keen interest in the findings of the Team, which would be discussed by the Governing Body in November 2001. His country would continue to monitor carefully the forced labour situation and was convinced that, in the absence of a concrete and clear improvement in the situation, it was too early to exclude the possibility of further measures.

The Worker member of Japan welcomed the understanding concluded between the ILO and the Government in May 2001 concerning the visit of the High-Level Team and urged both parties to implement it with sincerity. He expressed the hope that all forms of forced and compulsory labour would be eliminated in the country as soon as possible in both law and practice. However, he noted information that the military regime had threatened villagers in several areas not to tell the truth about forced labour. He therefore urged the ILO and the Government to give the High-Level Team full authority to investigate the current situation. He hoped that the work of the High-Level Team would enable the international community to understand what was going on in the country. He appreciated the efforts made by the United Nations and Asian countries, including Japan, to restore dialogue between the ILO and the Government.

He emphasized that democratization was another important issue which was closely related to resolving the situation with regard to forced labour. Human rights and trade union rights were of great importance to democracy, but were incompatible with the military regime. The Japanese Trade Union Confederation (RENGO) supported the activities of those who had been compelled to leave Burma because of their participation in democratizing the country. A Burma office had been set up in Tokyo to promote democracy in Burma. He urged the Government to guarantee pro-democracy activities without any restrictions in the country. He also called upon the Government of Japan to put pressure on the Government to guarantee its people freedom from all kinds of oppression and for the restoration of democracy. An important meeting had been held in Tokyo earlier in the year on further trade union action on the question. It had been decided to implement a programme of action to promote and strengthen the ILO resolution and to request the Government of Japan to review its relations with the country. Trade union representatives had proposed that Japanese overseas development aid should be strictly limited to humanitarian purposes and used cautiously so as to ensure that it did not promote the use of forced labour. They had also called on the Government of Japan to request the Government not to use forced labour for the activities covered by Japanese overseas development aid and to accept an international group of inquiry to monitor its use.

He expressed deep concern about the resumption of Japanese overseas development aid to the country, which had been halted in 1988 after the takeover of the military regime, and especially the grant for the repair of the Baluchaung hydroelectric power station. The aid was still premature. Apart from humanitarian assistance, Japan should not provide aid that would benefit the military regime. The Japanese Government had a great responsibility for resolving the forced labour issue, as Japanese aid had amounted to 62.7 per cent of the total external aid to the country in 1997. If the current situation with regard to forced labour was not improved, this assistance should immediately be stopped. If necessary, concrete action should be taken with the international community to eradicate all forms of forced and compulsory labour in the country.

The Government member of Canada welcomed the recently signed understanding on the ILO's objective assessment, which was to focus on the practical implementation and actual impact of the framework of legislative, executive and administrative measures against forced labour which the Government had announced that it had taken since October 2000. He stated that unless this assessment suggested otherwise, existing ILO measures should remain in place and emphasized that the ILO alone could provide an assessment of sufficient authority to bear legal, political and practical consequences internationally.

Given the vital standards at stake, he hoped that the Government of Burma would fully respect the agreed modalities and provide every guarantee that it would cooperate to ensure that the assessment was objective and credible. He emphasized that, to that end, the ILO's High-Level Team should be accorded complete discretion and freedom of movement in the organization and conduct of its programme of activities and meetings, as agreed in the understanding signed on 19 May 2000. He repeated his comments to the Governing Body in November 2000, namely that Canada had never sought a quarrel with the people of Burma, but sought an end to the abuse of their rights. He emphasized that forced labour amounted to indecent work which was unworthy of any ILO member State.

The Worker member of Colombia regretted that the members of the Committee were once again required to address the issue of Myanmar due to the Government's stubborn refusal to comply with ILO Conventions and Recommendations, to which was added the Government's inexplicable failure to comply with the resolutions adopted by the ILO.

He added that in 1997 Myanmar's unacceptable conduct had forced the Committee on the Application of Standards to place its comments in a special paragraph, given the Government's failure to effect any real change. He called for all workers to unite in the face of Myanmar's failure to submit to the ILO supervisory mechanisms and expressed his solidarity with the workers of Myanmar, especially in their struggle to achieve the observance of the ILO's fundamental Conventions and Recommendations, particularly Convention No. 29 on forced labour.

He stressed that under no circumstances could any government in any part of the world justify work performed under conditions of slavery and exacted through the use of force. He agreed with the Government of Myanmar that the best sanctions were those that were not applied. However, when a Government systematically refused to play by the established rules, implementing sanctions was the only method left, although no one liked to apply such methods.

Speaking on behalf of the workers of Latin America and the Caribbean, he once again urged the Government of Myanmar to comply fully with the provisions of ILO Conventions and Recommendations, beginning with Convention No. 29, thereby ending the suffering of those workers who were victims of forced labour. He also asked the Government to impose sanctions designed to make an example of those responsible for these violations of human rights.

He appealed to the Government of Myanmar to cooperate fully so that the ILO might carry out its work directly in the territory where the events had taken place. If the Government were truly convinced that its attitude and conduct were democratic, it should not have any reservations in agreeing to the ILO mission.

The Worker member of Italy, referring to the major problems and results relating to companies under paragraph 1(b) of the Conference resolution, said that the report to the Governing Body showed that few employers' organizations had replied to the Director-General's request for information. Respondents included the Finnish Confederation of Industry, the Confederation of Norwegian Business and the Confederation of British Industry, as well as the International Organization of Employers. She appreciated the fact that many companies had ceased to do business in the country. However, major companies based in other countries were still importing goods produced in the country. There had been an explosion of clothing exports, including to the United States and the European Union, despite the ILO action which had been taken. Goods such as rice and beans were being exported by transshipment through countries such as Malaysia and Singapore. Before the last session of the Governing Body, the ICFTU had presented the ILO with a wide-ranging report indicating that many companies involved in the oil and gas, timber, rice, agriculture, fisheries, textiles, finance and tourism industries were still doing business with or in the country and had made other business contacts with the regime since November 2000. There were some 300 such companies from over 30 countries.

The ICFTU report also contained information on over 580 cases of forced labour. Some of the evidence of forced labour related directly to the operation of the gas pipeline linking Burma with Thailand, involving French and American multinationals, as well as the construction of tourist infrastructure, in which the country's military leaders appeared to be directly involved. A British-owned company was also heavily involved in gas pipeline operations in the country. Moreover, a hydroelectric plant would be built as a result of a 29 million dollar grant from the Japanese Government, as a reward for opening dialogue with the opposition leader Daw Aung San Suu Kyi. Some other governments and industries were hiding behind these apparently new developments to continue business as usual. In that respect, she recalled that similar talks in the past had yielded no results.

She said that a large share of the income generated by foreign investment was used by the Junta to buy weapons for use against its own people. China was one of the main arms suppliers. The ICFTU and the International Trade Secretariats had already planned action to place pressure on those companies, some of them multinationals, which had been identified in Canada, France, Malaysia, Netherlands, Norway, Singapore, Spain and the United States. Trade unions in the energy industry, meeting recently in Bangkok, had called on oil and gas companies to cease investments in Burma while the use of forced labour continued. The trade union campaign had also started to target shareholders and institutional investors in some multinational enterprises investing in the country. One of the largest pension funds in the world had announced at its annual general meeting that it was proposing a resolution asking the company to withdraw from the country. In a case in the United States, a judge had stated the opinion that the company concerned by the lawsuit knew that forced labour was being utilized and that joint ventures benefited from the practice. In the past, governments and companies had hidden behind the absence of a global and binding decision to justify their inaction. Now there was a global decision by a United Nations body which gave them legitimate grounds to take action, as some of them had already done. She therefore urged employers' organizations and companies, in consultation with trade unions, to comply with the full provisions of the resolution. She also called on international and regional financial organizations to verify carefully the indirect projects and foreign direct investment in the country carried out through other countries and organizations. Any hesitation at this stage in implementing the agreed measures could jeopardize the efforts to eliminate forced labour and the resumption of talks for democracy.

The Government member of Switzerland noted that she had listened attentively to the explanations given by the Government of Myanmar as well as to the opinions expressed by the Employer and Worker members.

She indicated that the report of the last mission to Myanmar had contained positive points. She added that the three-week evaluation mission, which would take place next September, should examine the effective and good faith application of the legislative amendments requested. It was important that this mission have complete freedom of action, particularly so that it could define its own programme. These recent developments were an important step toward a constructive commitment on the part of the Myanmar Government to respond to the recommendations of the Commission of Inquiry. The Swiss Government therefore awaited with optimism the report that the mission would submit to the November 2001 Governing Body and would evaluate at that time the real political will of the Burmese authorities.

The Worker member of Swaziland emphasized that forced labour was a very serious violation and flagrant disregard for human dignity and must not be forgiven for as long as it existed. Every effort to eradicate the evil of forced labour had to be supported by all advocates of humanity and social justice. The present case put to the test the fundamental obligation of the ILO and its mandate. The ILO needed to answer the question of what was the acceptable desired result of ratification. Was it merely the adoption of a statute that was in conformity with the obligations undertaken, or did it need to be applied in both law and practice? The ICFTU report had shown that forced labour was still prevalent on the ground. He affirmed that a law that only existed on the statute books, and was not applied in practice, was not worth the paper it was written on. Unless the Government accepted that it was out of line with the requirements of Convention No. 29, which it had ratified voluntarily 46 years ago, it would be impossible for it to correct the wrongs that it was committing. Nevertheless, as indicated in document D.6, the Government had written to the United Nations Secretary-General condemning the decision of the Governing Body as a "grave injustice" and querying the mandate of the Director-General and the Conference on this issue.

He reaffirmed that the ratification of any international covenant by any government was a direct undertaking that it would enforce the covenant in law and in practice and that it would accept being monitored and questioned in the event that it violated the provisions of the covenant. Convention No. 29 was one of the core labour standards which, when applied, gave dignity to the worker. Without such dignity there could be no decent work. Moreover, forced labour constituted slavery and a crime against human dignity, and as such was incongruent with the dictates of social justice. The Committee was duty bound to uproot the evil of forced labour to restore dignity to the workers and people of the country. It should not therefore underestimate the gravity of this violation against humanity.

He said that governments which were prone to commit crimes against humanity did not readily desist from such practices without international pressure. If sanctions had not been applied against the apartheid regime in South Africa, its people would not have achieved democracy when they did. He therefore implored all countries to support social justice and maintain the sanctions until the people of Burma enjoyed an environment which was free of forced labour, guaranteed democracy and respected human and trade union rights and the rule of law. Only when the evaluation process by the ILO confirmed that Convention No. 29 was applied in law and practice could the sanctions be lifted.

The Worker member of Thailand indicated that in his country, there were more than 1 million illegal immigrants and nearly 20,000 refugees from Myanmar. These migrations had taken place over many years. The persons affected suffered from very bad social and economic conditions and had migrated to Thailand to escape poverty which resulted from both economic conditions and forced labour in Myanmar. These immigrants from Myanmar were vulnerable and were often badly exploited by their employers as they had no one to help them. At the same time, employers used the illegal immigrants to replace Thai workers who were facing difficulties in maintaining their working standards, especially in the area of occupational safety and health, and who demanded that ILO standards be respected. The political, economic and social condition of Thai workers was affected by these illegal immigrants and refugees who were the result of the political, economic and social conditions in Myanmar. Unless there was stability in that neighbouring country, Thailand would continue to face adverse consequences. Finally, the speaker welcomed the decision to send an ILO High-Level Team which would monitor the forced labour situation in Myanmar. He suggested that this Team visit the border between Thailand and Myanmar to gather information about the situation by talking to the refugees and the immigrants there. At the same time, he suggested that in accordance with article 33 of the ILO Constitution, the ILO resolution on Myanmar be kept in place until forced labour was totally eradicated in that country.

The Government member of Namibia stated that his Government was deeply concerned and horrified by the continued instances of forced labour in some parts of the world and, in particular, the critical situation in Myanmar. While he welcomed the statement of commitment and the assurance made by the representative of the Government of Myanmar, he strongly urged it to match this undertaking with concrete steps. Furthermore, he unreservedly endorsed the proposal for the ILO to send a team of experts to Myanmar to fully investigate the situation as soon as practicable. It was his firm view that this matter should remain on the ILO agenda until the Government of Myanmar fully complied with Convention No. 29.

The Government member of India stressed that her Government was strongly opposed to the practice of forced labour. Countries voluntarily adhering to the ILO Conventions should comply fully with them. In regard to the matter before the present Committee, her Government believed that the ILO's objectives could best be promoted through dialogue and cooperation and not through punitive measures or the threat of use of such measures. Her Government, therefore, advocated the path of constructive dialogue and cooperation between the ILO and the Government of Myanmar. The speaker also took note of an ILO mission to Myanmar the previous month, mentioned in document D.7. She also took note of the information submitted by the Government of Myanmar in document D.9 (information submitted in writing by the Government of Myanmar regarding the Memorandum on the understanding between the Myanmar Government and the ILO on the modalities of objective assessment on Myanmar's observance of ILO Convention No. 29 (prohibiting forced labour). The undertaking of an ILO objective assessment through the visit of a High-Level Team to Myanmar in September this year was a step in the right direction. The flexibility and constructive approach shown by the Government of Myanmar and the ILO were to be appreciated. This development underscored yet again the need to abnegate the punitive approach and to pursue the path of dialogue and technical cooperation.

The Worker member of Sweden indicated that her intervention would be focused on the replies of the governments and UN agencies to the 200 letters sent by the Director-General, asking them to act in accordance with the ILO resolution and to inform the ILO about specific measures taken. She was pleased to note that in some countries the political establishment was responding. On 22 May 2001, in the United States, Senators Tom Harkin and Jesse Helms introduced a Bill prohibiting all imports from Myanmar, specifically in response to the ILO's request. This Bill had bipartisan support in both Houses of Congress. In Norway, the Government was engaged in serious talks with groups in opposition to the Junta in order to divest its investments. At the same time, the speaker stressed that more should be done, and that pressure on the regime should be maintained by all. Disturbing events had taken place since the timid steps taken by the Junta. After the visit paid by the European Union Troika to Yangon at the end of January, the European Union had considerably slowed down its engagement in condemning the current situation in Myanmar. The European Union was apparently content with the mere hope that contacts would develop further, broadening as well as deepening, so as to promote national reconciliation, democracy and human rights. The speaker put into question the decision by the EU to grant a visa to a high representative of the Government enabling him to participate in an international forum last May in Brussels. What was most disturbing, however, was the situation regarding trade and investments. Myanmar's trade with both the United States and the European Union had soared recently, while the United States remained Myanmar's largest export market. In this respect, she indicated that the government export to the US grew by around 400 per cent after 1997 and by about 200 per cent to Norway. Bilateral trade between Myanmar and the three north-east Asian countries (China, Japan and the Republic of Korea), totalled US$187.69 million in the first two months of this year, a 36.3 per cent rise compared with the same period in 2000. China, which had border trade with Myanmar in addition to normal trade, stood as Myanmar's third largest trading partner after Thailand and Singapore, while Japan and the Republic of Korea remained Myanmar's fourth and fifth largest trading partners respectively. In particular, the speaker recalled the reported intention of the Government of Japan to provide a 3.53 billion yen grant for the repair of the Baluchaung Hydropower Station, a project in Karenni State, a region affected by the civil war in Myanmar for which forced labour would most likely be used, directly or indirectly. This was against the spirit of the adopted ILO resolution which needed to be implemented by all its member States, now more than ever.

The Government member of the United Kingdom fully supported the statement made by the Government member of Sweden on behalf of the European Union. He recalled that the European Union had been unstinting in expressing its concern about the practice of forced labour in Burma and had been instrumental in pushing for steps to apply article 33 measures during the last International Labour Conference and the Governing Body in November. He therefore did not recognize the portrayal of the European Union position contained in the Swedish Worker member's statement. The crucial question before this Committee was not a technical issue relating to the bureaucratic processes adopted by the Burmese regime. It was for the Committee to decide how and when the morally abhorrent practice of forced labour in Burma could be ended. The visit of the High-Level Team to Burma in September would be a first step in the assessment process, although three weeks was a very short time to ascertain whether forced labour had diminished or stopped in Burma. He reiterated the importance of the High-Level Team being granted freedom of access to witnesses and stressed the importance of all interviews being conducted in conditions where the interests of witnesses could be protected. The High-Level Team should be able to visit all areas of the country, including difficult border areas such as Rakhine, Chin, Kayin, and Kayah. The High-Level Team should also be able to decide when was the most appropriate time to visit Burma and the Director-General should have full freedom in appointing members of the team. In that context he was attracted by the suggestion that members of the original Commission of Inquiry should participate in the team. One thing should be clear: if in November the High-Level Team was able to report that forced labour in Burma had ended, then article 33 measures would be lifted. If, however, the High-Level Team reported that forced labour still existed or that they had been impeded in carrying out their assessment, then the United Kingdom Government, like that of the Netherlands, would be forced to consider what further measures could be taken against the Burmese Government.

The Worker member of the United Kingdom endorsed his Government's sentiments that the visit of the High-Level Team in September of this year was a step in the right direction. However, he did wish to raise certain issues. First of all, he wondered whether it would not be better for the High-Level Team to undertake this mission a little later when the monsoon season was over. Moreover, in order for the High-Level Team to do its work effectively and visit various regions of Myanmar during a three-week period, it might be preferable to appoint five members rather than three to this High-Level Team. In addition, a single visit of a three-week duration might prove insufficient to provide a clear and comprehensive picture of the situation regarding forced labour in the country. Hence, it would be necessary to ensure that follow-up visits were undertaken. Preferably, a permanent ILO presence in the country could well prove necessary to ensure that Myanmar remained free of forced labour. Another important aspect was the requirement of full cooperation from the Government of Myanmar in providing access for the High-Level Team to the border areas. A very important issue was that of the protection of witnesses. Those who were accused might seek reprisals. Indeed, the Worker members knew, and it had been reported by Amnesty International, that some 12 persons who had spoken to a UN envoy had subsequently been detained, tortured and given long prison sentences. Hence, it was the responsibility of all involved, including the Government of Myanmar, the Office, the High-Level Team, as well as governments who maintained a mission in the country to ensure that those who volunteered to give evidence were not subjected to reprisals. Finally, persons who were not part of the current Government, including members of the democratic opposition, should be involved in the work of the High-Level Team.

The Government member of Japan indicated that the Government of Myanmar had taken a variety of legislative and administrative measures to eradicate forced labour. While results at the level of implementation remained to be seen, he considered that a constructive approach with the Government of Myanmar was the only one that would solve the problem prevailing in that country. The ILO was to be commended for its cooperation with the Government of Myanmar. The Government of Japan was constantly in touch with Myanmar at several levels in order to remind it of the need to cooperate with the ILO. Finally, the speaker stressed that his Government's relationship with Myanmar, including in the form of development assistance, did not and would not in any way induce, directly or indirectly, forced labour in that country. In this regard, he emphasized that the assistance by the Japanese Government to repair the Baluchaung Hydropower Station was only intended to prevent, in the future, further harm to the general population by the deterioration of the said power plant. Regarding this assistance, he pointed out also that the Japanese Government took into account the solicita- tion made by the Special Representative of the United Nations Secretary-General, Mr. Rasali.

The Government member of Portugal endorsed the interventions made by the Government member of Sweden on behalf of the European Union and the Government member of the United Kingdom on the measures taken by the European Union with regard to putting to effect article 33 of the ILO Constitution. The Commission of Inquiry had recommended that a series of administrative, legislative and regulatory measures be taken so as to put an end to the practice of forced labour, and to ensure the application of Convention No. 29. The previous year, the Governing Body of the International Labour Organization had noted that such measures had not been taken and thereby for the first time referred to article 33 of the Constitution. That decision was taken in order to strengthen the role played by the ILO as well as enhance its credibility in the promotion of fundamental rights at work. In that context, there was reason to endorse the sending of a High-Level Team, even if the option of a continued presence in the country would have been better. A step forward could be made by the Team provided that three conditions were fulfilled: the mission should be free to move; it should have access to all requested places; and finally, the Director-General should be free to select its members. As a member of the Governing Body, Portugal expressed its specific wish to participate in a constructive tripartite discussion on that question at the next session of the Governing Body.

The Government member of Brazil reiterated his support for constructive dialogue and cooperation as the way to resolve the question of forced labour in Myanmar. He underlined the importance of the ILO presence on the ground as a way of ensuring the credibility and effectiveness of the legislative and administrative measures applied by the Government. He expressed his support for the visit by a High-Level Team to Myanmar which would allow an objective evaluation of the measures adopted. That evaluation would provide a sufficient basis for the Governing Body, at its November meeting, to be able to recommend in an impartial and objective manner the measures to be taken in the future.

The representative of the Director-General indicated that he already had some clarifications on certain points raised. Regarding the participation and provision of information to actors other than the government authorities in the process which lead to the Memorandum of Understanding and the High-Level Team, he underlined that Ms. Aung San Suu Kyi had been informed of the content and importance of the Memorandum of Understanding. In this respect, she had expressed the wish to get in contact with the High-Level Team. Moreover, regarding the representatives of civil society, a list of NGOs present in Myanmar had already been established. Regarding the period during which the High-Level Team would visit Myanmar, the month of September had been chosen after taking into consideration the climatic conditions and the need to have adequate time to prepare a report for the November Governing Body. These considerations were of a practical nature and the exact date could be re-examined later on.

The Employer members recalled, at the end of a detailed and serious discussion, that their position, as clearly presented at the outset, was fully in line with the steps taken up to now by the various bodies of the ILO. It was their impression that there was today a rather uniform evaluation of many aspects of the case by different members of the Committee, which had expressed very cautious hope. The Government of Myanmar had made the first step in the right direction. However, the desired results had not yet begun to become reality. Great efforts were still required to overcome the difficulties, which included the size of the country, the long duration of forced labour practices, as well as the fact that over the years many authorities in Myanmar had become used to the practice of forced labour: in particular many civil and military authorities were beneficiaries of forced labour and this was a barrier to change. In view of these facts, the results sought were a difficult task and a challenge for all involved. The agreements so far reached did not yet guarantee anything: they contained promises and formal arrangements for addressing the problem. Without real goodwill nothing would succeed - not even an objective assessment of what was actually occurring in practice. Under these circumstances, it was necessary to stick without any modification to the decisions taken up to now by the ILO bodies. In this respect they could not support the Government of Myanmar's suggestion in the Memorandum on the understanding between the Myanmar Government and the ILO on the modalities of objective assessment on Myanmar's observance of ILO Convention No. 29 (document D.9) to loosen the measures taken regarding Myanmar in application of article 33 of the Constitution. Up to now, all small steps announced stood on sheets of paper. But the Committee's objective here as with regard to all ILO standards was to shape social reality. Where could this be more necessary than with regard to human rights? Being optimists with experience - i.e., realists, the Employer members considered that further developments in this case should be followed soberly and critically, with hope for the people in Myanmar.

The Worker members said that they had listened carefully to the various statements. Despite the information provided by the Government representative of Myanmar, the serious violations of Convention No. 29 continued. The case under examination was extremely important because of the gravity of the violations and the continued systematic, not to say institutionalized, practice of forced labour. The Organization's objective remained to implement the recommendations of the Commission of Inquiry. To that end, the Government must ensure that national legislation and practice were aligned with Convention No. 29 such that no forced or compulsory labour could be imposed by the authorities and that persons who infringed the prohibition on forced labour would be punished. The ILO was the only body which could objectively evaluate whether the recommendations had been implemented. The High-Level Team was a first step in that evaluation. The Worker members, however, considered that the composition and functioning of that Team should meet certain criteria. It should be composed of people with a high degree of expertise in the subject, including at least one of the members of the Commission of Inquiry and participation by the International Labour Standards Department. It should be big enough to cover the different regions of the country and the various types of forced labour which had been identified. It should have access to all the information, persons and places that it wished both inside and outside the country. It should have interpreters available. It should be guaranteed that witnesses would enjoy effective protection and it should be allowed to choose an appropriate period to undertake its mission. The Worker members were at pains to emphasize that the mission to be carried out by that Team should under no circumstances be regarded as the end but rather the beginning of a process. The Organization must pursue the examination of this case assiduously and undertake the objective evaluation of the implementation of the three recommendations of the Commission of Inquiry. Further missions would be necessary for that purpose. In conclusion, the Government representative who spoke on behalf of the European Union deserved support when he stated that the measures taken in application of article 33 of the Constitution could only be lifted if forced labour was genuinely abolished and the recommendations of the Commission of Inquiry effectively implemented.

The Government representative of Myanmar noted that a number of delegations of member States had expressed their appreciation concerning the agreement between his Government and the ILO on modalities of the ILO objective assessment. He expressed his gratitude to the ASEAN member States and the member States of the Asia/Pacific Region for their joint statement on the issue. With regard to the timing of the visit of the High-Level Team, the speaker recalled that the month of September had been chosen after taking into consideration the weather conditions. The monsoons would almost have stopped by then and the High-Level Team could undertake its visits without any problem. However, other dates were also possible such as the month of October as had been suggested. Regarding the size of the High-Level Team, nothing had yet been decided on this matter. However, he pointed out that the membership of the High-Level Team should not be too large. Furthermore, measures were already being taken with regard to implementation. In this respect the National Implementation Committee had formed five teams in April 2001 to ensure implementation. However, the application of legal texts required a certain amount of time which was why no immediate results could be observed. With regard to the protection of witnesses, these were fully protected by the existing provisions of the Penal Code. In this respect, the legal system of the country was inherited from the British legal system and was therefore very solid. Concerning freedom of movement of the members of the High-Level Team, they could have free access to all areas, including those where there were allegations of the use of forced labour. The only exception to this were those places where the security of the members of the High-Level Team would be under threat due to the ongoing activities of the armed insurgents. This issue was already reflected in the terms of the Agreement. The Government representative stressed that now was the time for confidence-building through the High-Level Team which would conduct an objective assessment mission in Myanmar this year. The Government of Myanmar was ready to cooperate with, and facilitate the work of the High-Level Team, in accordance with the agreement on the modalities of the objective assessment. He asked that the words of appreciation and positive comments made by speakers during the present sitting of the Committee be reflected in the closing remarks of the Chairperson. He also asked that the closing remarks reflect the opinion of member States that the 282nd Session of the Governing Body in November 2001 should review the measures taken against Myanmar under article 33 of the ILO Constitution in light of the outcome of the forthcoming visit of the High-Level Team, with a view to removing them.

The Worker members, referring to their earlier statements, indicated that they had not been convinced by the Government's plea.

The Employer members recalled that their hopes, expectations and demands had been summed up in their earlier declarations; positive results were still awaited and could not be taken for granted.

The Government representative of Myanmar asked that the closing remarks of the President reflect the positive comments regarding the agreement reached by the Government and the ILO on the modalities for the objective assessment which had been made by delegates, including a number of Workers' delegates. This would introduce better balance into the text. He suggested therefore that the sentence in the conclusions beginning with "In this regard, it noted with interest ..." read "In this regard, it noted with appreciation ...". He also suggested that the phrase concerning Order No. 1/99 reflect the original wording of the Committee of Experts which read that the Order "... could provide a statutory basis for ensuring compliance with the Convention in practice ..." (paragraph 7). The experts, who are internationally recognized independent persons, had made an objective assessment in moderate language which should be retained.

In response to several questions, the Chairman clarified that the phrase in the conclusions concerning Order No. 1/99 to which the Government representative referred, used different wording but did not modify the conclusions on the same subject in paragraph 7 of the Committee of Experts' observation, and was entirely compatible with the Experts' meaning. This clarification would figure in the report of the discussion in the Committee's report.

The Employer members proposed to insert a paragraph in the general part of the Committee's report to the Conference to indicate that the Committee had held a special sitting on the issue of forced labour in Myanmar. The proceedings of this sitting should be reproduced in a special Part Three of the report. The Worker members agreed with this proposal.

B. Observation of the Committee on the Application of Standardsa Convention No. 29: Forced Labour, 1930

Observation 2000

(Not reproduced)

C. Documents submitted to the Governing Body (GB.280/6, GB.280/6(Add.1) and GB.280/6(Add.2))

GB.280/6

SIXTH ITEM ON THE AGENDA

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

Introduction

1. At its 279th Session (November 2000), the Governing Body had before it the report of the ILO technical cooperation mission which visited Myanmar from 20 to 26 October 2000 and subsequent documents provided by the Government. (Endnote 1) The Governing Body concluded that the conditions set out in paragraph 2 of the Conference resolution had not been met and that effect should accordingly be given to the provisions of paragraph 1 of the resolution adopted by the International Labour Conference at its 88th Session (June 2000). The measures mentioned in paragraph 1 of that resolution therefore came into effect on 30 November 2000. (Endnote 2) In the light of the discussion, it was however noted that the Director-General should continue to extend cooperation to the Government of Myanmar in order to promote full implementation of the recommendations of the Commission of Inquiry. (Endnote 3)

2. In accordance with the Conference resolution, by letter of 8 December 2000, the Director-General brought subparagraph (b) of operative paragraph 1 of the resolution to the attention of governments of member States of the ILO, and requested that they inform him of any action taken or envisaged in this regard. The Director-General also requested that the recommendations contained in the resolution be brought to the attention of the employers' and workers' organizations in the country so that they might take relevant measures and inform him either directly or through their government. A copy of this letter was also sent to the relevant national organizations of employers and workers.

3. In addition, international employers' and workers' organizations and other non-governmental organizations having consultative status with the ILO were also informed of the Governing Body actions.

4. In accordance with the Conference resolution, by letter of 8 December 2000, the Director-General informed the international organizations referred to in article 12, paragraph 1, of the Constitution of Myanmar's failure to comply with the recommendations of the Commission of Inquiry and called on the relevant bodies of these organizations to reconsider, within their terms of reference and in the light of the conclusions of the Commission of Inquiry, any cooperation they might be engaged in with Myanmar and, if appropriate, to cease as soon as possible any activity that could have the effect of directly or indirectly abetting the practice of forced or compulsory labour. (Endnote 4) The Director-General also requested these organizations to inform him of any action taken in this regard by the competent bodies of the organization. In addition, the Director-General has been in close touch with Ambassador Razali Ismail, the UN Secretary-General's special envoy to Myanmar, in connection with his two recent visits to the country on 9-12 October 2000 and 5-9 January 2001. The Office has also discussed the matter with the Special Rapporteur on the situation of human rights in Myanmar, Mr. Paulo Pinheiro.

5. With regard to subparagraph (d) of operative paragraph 1 of the Conference resolution, the Director-General has after close consultations with the United Nations secretariat set in motion the procedures necessary to have the question of Myanmar's failure to implement the recommendations of the Commission of Inquiry placed on the agenda of the July 2001 session of the United Nations Economic and Social Council (ECOSOC), seeking the adoption of recommendations directed by ECOSOC or by the General Assembly, or by both, to governments and to other specialized agencies and including requests similar to those contained in subparagraphs (b) and (c) of paragraph 1 of the Conference resolution.

6. In addition to the information communicated pursuant to the Conference resolution, a substantial amount of information was also received from other sources. This was in large part due to the wide publicity attracted by the coming into effect of the measures contained in the Conference resolution. A number of NGOs and individuals volunteered information to the Office regarding measures taken and other action initiated in support of the Conference resolution, as well as information regarding the current practice of forced labour in Myanmar.

7. Information received on measures taken in regard to the Conference resolution will be set out in four parts: (i) developments as regards the Government of Myanmar; (ii) measures taken by the Organization's constituents; (iii) measures taken by international organizations; (iv) other relevant information received.

Developments as regards the Government of Myanmar

8. Due to early closure of the Governing Body's 279th Session, a letter from the Permanent Mission of Myanmar to the Chairperson of the Governing Body stating its position following the Governing Body's conclusions reached his office too late to be brought to the attention of the Governing Body. This statement is reproduced in Appendix 1 for information.

9. In a letter dated 6 December 2000 to the Chairman of the 279th Session of the Governing Body, the Permanent Representative of the Myanmar Mission reiterated the concerns raised in the letter referred to in the preceding paragraph. The letter also contained an annex entitled "Resumé of the concrete measures taken by the Myanmar Government", which included information on the Government's position prior to the Governing Body's conclusions. This document is reproduced in Appendix 2 for information.

10. In a letter dated 22 December 2000 to the Government of Myanmar, reproduced in Appendix 3, the Director-General informed the Government that he had notified ILO Members and international organizations of the decision of the Governing Body, as contemplated in the relevant paragraph of the resolution, but stressed that he continued to extend cooperation to the Government in order to promote the full implementation of the recommendations of the Commission of Inquiry. He expressed the sincere hope that the measures currently in force would soon become unnecessary as a result of the Government's full application of these recommendations.

11. In reply to the Director-General's letter of 22 December 2000, the Government sent a letter dated 11 February 2000, reproduced in Appendix 4, in which it recalled that it had received two technical cooperation missions from the ILO in its efforts to make its domestic legislation fully in line with Convention No. 29. It had put into place a framework of legislative, executive and administrative measures to make forced labour illegal both in law and in practice. However, "... powerful forces in the ILO Governing Body totally ignored the concrete measures taken by Myanmar as well as its demonstrated desire to cooperate with ILO". The letter further stated that despite this, Myanmar was resolute in its endeavours to implement the framework of measures that it had put in place. The Committee for Implementation of Convention No. 29 was holding regular meetings to review the situation. The national monitoring mechanism which had been put in place was also functioning smoothly. There had been a few cases where the latest legislative order had been breached. These cases had been investigated and necessary legal action was taken against the perpetrators. The Government thanked the Director-General for his readiness to extend cooperation to Myanmar, and fully realized that its national efforts would receive better acceptance by its detractors if they involved the ILO. However, until such time that Myanmar received fair and equitable treatment, it would have to itself continue its efforts for the total elimination of the practice of forced labour in Myanmar. The Government gave its assurances that it would continue to take steps to ensure that forced labour was illegal in Myanmar and that the framework of measures put in place would be resolutely implemented.

12. The Director-General responded to this reply by letter dated 1 March 2001, reproduced in Appendix 5 The Director-General will inform the Governing Body of any future developments.

Measures taken by the Organization's constituents

Measures taken by member States

13. By 5 March 2001, responses had been received from 39 member States, as well as a number of national employers' and workers' organizations. A summary of these responses follows. Given the ongoing nature of some of the reported measures, the present report will be completed, as appropriate, with any further relevant information for the International Labour Conference as indicated in paragraph 67 below. As a result of member States forwarding information pursuant to the Conference resolution to national employers' and workers' organizations, a considerable amount of information was received separately from these organizations about actions they had taken in relation to the resolution.

14. In a letter dated 19 January 2001, the Government of the United States indicated that it had worked continuously and with bipartisan support to seek a return to democracy and improvements in human rights, including an end to forced labour, in Myanmar. In this regard, the Government had imposed a series of diplomatic and economic sanctions against Myanmar in recent years, including suspension of economic assistance, downgrading diplomatic representation to chargé level, an arms embargo, suspension of trade benefits under its GSP programme, opposition to support programmes from international financial institutions, restriction on visas for Myanmar individuals involved in the suppression of democracy and human rights, and a ban on US investment in Myanmar. The Government had also supported a number of actions taken by the ILO with regard to forced labour in Myanmar, including the November 2000 finding by the Governing Body that insufficient progress had been made to withhold the measures adopted by the Conference. At the same time, the Government noted that the Myanmar authorities and Daw Aung San Suu Kyi of the National League for Democracy had confirmed that they were engaged in dialogue. The Government hoped that this was a genuine effort to achieve national reconciliation, and that it brought concrete and timely progress towards ending forced labour and other human rights abuses in Myanmar. The Government hoped this process succeeded, but believed that in the absence of significant and measurable progress, ILO Members, including the United States, should be prepared to consider additional measures, including trade sanctions, in response to the article 33 decision of the Conference. The Government stressed that there was no evidence yet before the Governing Body or the Conference that suggested the recommendations of the Commission of Inquiry had been fully implemented. Finally, the Government expressed continued misgivings regarding an ILO presence in Myanmar.

15. In a letter dated 15 February 2001, the Government of Thailand stated that in order to take measures in compliance with the Conference resolution, on 10 January 2001 the Ministry of Labour and Social Welfare had held a meeting of relevant government agencies, workers' and employers' organizations and others, and that the Government could therefore give assurances that no Thai investment in Myanmar contributed, directly or indirectly, to the exaction of any form of forced labour. Every possible effort would be made to discourage the practice of forced labour, should the Government become aware of its existence in any form. In order to resolve this issue effectively and strengthen cooperation with the ILO, agreement had been reached to set up a steering committee in order to monitor and follow up the case.

16. The Governments of Denmark, Finland, France, Germany, Ireland, Italy, Netherlands, Sweden and United Kingdom indicated that the matter of how best to give effect to the recommendations contained in the Conference resolution had been discussed with employers' and workers' organizations, among EU Member States and with the European Commission. They shared the international concern at the practice of forced labour in Myanmar, a practice which they feared had not yet ended. The European Community suspended GSP trade privileges in 1997 as a result of this practice. The European Union had also taken a number of other measures over the last four years, set out in its Common Position, in response to the political situation in Myanmar. The Myanmar regime had taken certain steps aimed at ending the practice of forced labour, but it needed to be outlawed legally, ended in practice, and any continuing practitioners punished. The European Union was monitoring the situation closely and, should the authorities in Myanmar fail to take the necessary action in this respect, the European Union stood ready to take further measures. The European Union made clear its concerns regarding forced labour during the visit of its Troika mission to Myanmar in January 2001. It sincerely hoped that contacts would be renewed between the ILO and Myanmar and that an ILO presence might be established in the country in order to verify the definitive end to the practice of forced labour. The Government of Ireland added that it intended to write to any companies with trade or investment links with Myanmar to express its support for the ILO resolution. The Government of Denmark added that its Standing Committee for ILO matters had recommended that Danish enterprises consider their relations with Myanmar. The Government of France added that it had undertaken an exhaustive assessment of its cooperation with and assistance to Myanmar, currently limited to the humanitarian field, in order to ensure that these relations could not in any way perpetuate or extend the practice of forced labour in the country. A census of French companies working in Myanmar was also underway, in order to inform them of the ILO resolution. The Government of Italy added that it had instituted an in-depth review of bilateral relations with Myanmar to ensure that they could not be taken advantage of to perpetuate the system of forced labour in that country. Italian commercial relations with Myanmar had been reduced to a minimum following the deterioration in the political and human rights situation. Between January and October 2000, the most recent period for which figures were available, the total trade with Myanmar had been 32 million euros, and there was no Italian investment in Myanmar, nor was any currently planned. The number of Italian tourists visiting Myanmar between 1999 and 2000 was minor. The Government of the Netherlands added that its policy was neither to encourage Dutch companies to enter into activities in Myanmar nor to discourage them. Total trade amounted to around US$19 million annually. The Government of Sweden added that its relations with Myanmar were of limited extent. Its economic relations were negligible, with imports for the period January-October 2000 standing at around SEK20 million (mostly wooden and textile products) and exports for the same period standing at SEK1.2 million. It was ready to take measures to ensure that the country's trade with Myanmar did not support the system of forced labour. As one measure, it would officially inform Swedish importers of the Conference resolution and the recommendations of the Commission of Inquiry.

17. In a communication dated 28 February 2001, the Government of Switzerland stated that due to lack of progress in democratization in Myanmar and due to systematic violation of human rights (including workers' rights), it had passed a law on 2 October 2000 instituting measures against Myanmar. This law, a copy of which was provided, imposed an arms embargo and prohibited the export to Myanmar of equipment that could be used for the purposes of internal repression. In addition, members of the Government of Myanmar and their families were subject to a freeze of their assets in Switzerland and were prohibited from entry into or transit through Switzerland. Consultations had established that relations between Switzerland and Myanmar were minor, with imports over the period January to November 2000 standing at Sw.frs.2.2 million and exports at Sw.frs.3.5 million. The number of Swiss tourists visiting Myanmar was also minor. In addition, the Government pointed out that the international "Clean Clothes" campaign had particularly targeted an underwear company based in Switzerland. The Swiss tripartite consultation commission, while welcoming recent legal measures taken by the Government of Myanmar, hoped that these would be translated into action. It further hoped that Myanmar would accept a permanent ILO presence, which would be able to verify the implementation of the recommendations of the Commission of Inquiry, and in this way that a normalization of relations between Myanmar and the international community might be facilitated. Taking into account the fact that existing bilateral economic relations were minor, and given the initial steps taken by the Government of Myanmar towards a political opening, it was not envisaged for the moment that the Government would take additional measures against Myanmar.

18. In a communication dated 26 January 2001, the Government of Norway confirmed its continued support for the EU's Common Position on Myanmar. It did not provide humanitarian assistance to organizations or activities that contributed in any way to forced labour in Myanmar. Half of the Norwegian assistance related to Myanmar was applied to human rights and democracy measures. In 1998 the Government issued a call, which remained in effect, to Norwegian firms not to trade with Myanmar. Current trade with Myanmar was marginal. In December 2000 the Government had met with the Norwegian Federation of Trade Unions to discuss the question of a possible boycott.

19. In a communication dated 1 March 2001, the Government of Australia stated that it had conducted a review of relations with Myanmar, which had established that no Australian government-funded aid programmes or activities supported or perpetuated the practice of forced labour. The Government was unaware of any Australian firms engaging in activities in Myanmar which were linked with forced labour, but its embassy in the country had advised Australian companies known to be working or investing there of its review and recommended that they ensure their compliance with the Conference resolution. In addition, the Australian Government had taken constructive steps in other areas to encourage the Myanmar authorities to eliminate forced labour. It had funded a series of human rights training workshops in Yangon in 2000 for some 50 middle-level officials, one of which was an "international law overview" during which participants openly discussed sensitive issues including the issue of forced labour.

20. The Governments of Austria, Croatia, Ecuador, Nicaragua, Saudi Arabia, Trinidad and Tobago and Ukraine stated that they had communicated the details of the Conference resolution to their employers' and workers' organizations, but did not have any further information to provide at this stage.

21. The Governments of Chile, Cuba, Czech Republic, Iceland, Islamic Republic of Iran, Jordan, Kenya, Lithuania, Malaysia, Mali, Morocco, Panama, Philippines, Romania, Singapore, Suriname and Togo stated that they had no relations with Myanmar that could be taken advantage of to perpetuate or extend the practice of forced or compulsory labour referred to by the Commission of Inquiry. The Government of Singapore also reiterated that the adoption of promotional measures rather than sanctions would be more appropriate and effective in addressing the issue of forced labour in Myanmar. The Government of the Czech Republic also stated that it had joined the EU Common Position on Myanmar, adopted in 1996 and subsequently extended. It had also joined the EU embargo on weapons, ammunition and military equipment export to Myanmar, had cancelled aid which was not of a clear humanitarian character as well as development aid programmes. Bilateral relations were also suspended, including those of social partners. The Government of Malaysia also stated that it would continue, along with other ASEAN members, to urge the Myanmar authorities to implement measures that would bring an end to all practices described as forced labour by the Commission of Inquiry. It looked forward to an amicable solution which would address the issue effectively.

Measures taken by national employers' and workers' organizations

22. The Confederation of Free Trade Unions of the Slovak Republic noted that the Slovak Republic followed the EU position on Myanmar. The Slovak Republic did not maintain any bilateral political relations with Myanmar, but did maintain trade contacts within the EU restrictions. There was not thought to be any investment in Myanmar by Slovak enterprises, but a review of the type of commodities imported from Myanmar to the Slovak Republic showed that the majority belonged to sectors which were subject to violation of fundamental labour rights. Attached to the letter was a list of Slovak enterprises exporting to and importing from Myanmar as well as a breakdown of this trade by sector and whether it was likely to involve forced labour.

23. In a communication dated 20 February 2001, the Confédération Générale du Travail Force Ouvrière indicated that it had requested the French Government to provide it with a list of French companies having relations with Myanmar as well as details and amount of business dealings with that country. In addition, the organization had written to a certain French company involved in hotels and tourism to request them to reconsider their activities in Myanmar. The Confederation was not satisfied with the company's response that its presence would have positive effects. Moreover, the Confederation had repeatedly pressed the French Government to become involved in the question of the presence in Myanmar of a certain French multinational company. The Confederation had also requested that a special session of the consultation commission for ILO matters be held, dedicated exclusively to the question of Myanmar.

24. Communications from Norwegian employers' and workers' organizations were forwarded by the Government of Norway. The Norwegian Confederation of Trade Unions stated that together with other Norwegian voluntary organizations it had played an active part in trying to bring about a statutory Norwegian economic boycott of Myanmar. The Confederation of Vocational Unions indicated that it strongly urged the Government to implement such a boycott. The Confederation of Norwegian Business and Industry welcomed the Government's requests for abstention from economic cooperation with Myanmar and would encourage member enterprises to comply with this request. In a separate communication, the Norwegian Confederation of Trade Unions provided translations of correspondence between itself and the Government of Norway regarding the Confederation's call for a Norwegian economic boycott of Myanmar.

25. The Swedish Trade Union Confederation indicated that it had requested the Swedish Government to take additional measures against Myanmar, including a ban on investments and on the import of products from Myanmar. Its affiliated national unions would undertake a review to ensure that no Swedish companies or authorities were economically active in Myanmar, including imports, exports, investment and trade. The organization also requested that Sweden, as holder of the EU presidency, should seek a decision by the EU Council of Ministers banning investments by all companies based in the European Union and banning imports of all products originating in Myanmar.

26. Information from German workers' organizations was forwarded by the Government of Germany. A report on the elimination of forced labour in Myanmar by the German Confederation of Trade Unions discussed the background to the case and noted that most forms of economic relations with Myanmar made at least some use of infrastructure built with forced labour. All German companies were advised to take a critical look at their economic ties to business partners in Myanmar. The works councils of enterprises that had economic relations with Myanmar should request management for detailed information about the nature of these ties, and urge management to cut any ties which could not be maintained without making use of infrastructure constructed using forced labour. Such requests were covered by paragraph 80 of the Works Constitution Act, since such an enterprise would be party to what the international community considered a grave violation of the law. A letter to the Government of Germany from the German Union of Salaried Employees supported any action the Government could take regarding the situation in Myanmar, including representations to the Government of Myanmar via its embassy.

27. The Union Syndicale Suisse provided information on the extent of trade relations between Myanmar and Switzerland, set out the details of the law passed by the Government of Switzerland against Myanmar on 2 October 2000, and noted that the Swiss-based textile company had been targeted by the "Clean Clothes" campaign. Similar information was provided by the Government of Switzerland and is set out in more detail in paragraph 17 above.

28. Information from the Confederation of British Industry (CBI) was forwarded by the Government of the United Kingdom. In a letter dated 8 February 2001 to the Government of the United Kingdom, the Confederation indicated that its member companies had had the Government's policy towards Myanmar brought to their attention. The CBI was one of the strongest proponents of tough action against Myanmar and would continue to support the ILO action.

29. The Government of Finland forwarded information from the Confederation of Finnish Industry and Employers. The Confederation indicated that it did not have any relations with Myanmar or business organizations there. It supported the EU position and informed its membership (constituting 85 per cent of Finnish industry) on a regular basis about the ILO's recommendations. Finnish enterprises did not operate in Myanmar nor have industrial investments or networks there. Trade between Finland and Myanmar was minor, with exports over the period January-November 2000 standing at 248,000 euros and imports over the same period standing at 2 million euros (mostly clothing).

30. The Barbados Workers' Union and the National Confederation of Free Trade Unions of Romania indicated that they had no relations with Myanmar that could be taken advantage of to perpetuate or extend the practice of forced or compulsory labour referred to by the Commission of Inquiry.

31. The International Organisation of Employers informed all its member federations of the November Governing Body debate and highlighted the employers' position, clarified the meaning of the resolution and accompanying measures and informed them that one of the measures would be to ask constituents to review their relations with Myanmar. Employers have been involved in discussions with governments at national level on the country response to the resolution.

Measures taken by international organizations

32. By 5 March 2001, responses had been received from 20 international organizations. These came from the secretariats of these organizations, and no information was provided at this stage about any discussions in the relevant bodies of these organizations regarding the reconsidering of any cooperation they may be engaged in with the member concerned.

33. The United Nations Secretary-General indicated that the matter had been brought to the attention of all offices concerned in the United Nations. The United Nations and its programmes and funds could not be involved in any activities that might have the effect of directly or indirectly abetting the practice of forced or compulsory labour as this would be contrary to Article 1 of the United Nations Charter.

34. The European Commission stated that it strongly supported the significant position the ILO had taken on Myanmar, and had consequently engaged in discussions with the European Union Member States on the implementation of the terms of the Conference resolution. Action had already been taken in 1997 following an investigation into allegations by European trade union organizations of forced labour in Myanmar. As a result, Myanmar's access to the European Union's Generalised System of Preferences had been removed. The European Union had also taken a number of other measures over the last four years which were set out in its Common Position, first adopted in 1996 and strengthened on a number of occasions since. The Commission considered that the authorities of Myanmar needed to take rapid steps to ensure full compliance with ILO recommendations on the elimination of forced labour. The Commission, in common with the Member States of the European Union, was monitoring the situation closely and, should the authorities fail to take the necessary steps, the Commission would be ready to propose further measures to be decided by the Council, including possible measures in the field of trade and investment relations.

35. The Office of the United Nations High Commissioner for Refugees (UNHCR) indicated that it had made an assessment of its activities in Myanmar and concluded that there were no activities which might be considered as directly or indirectly abetting the practice of forced labour. Attached to the communication was a "note on UNHCR's activities in Myanmar and compulsory labour", which described the nature of UNHCR's operations in Myanmar in relation to each of its six areas of intervention and discussed any impact this assistance might have on the practice of forced labour. This note is reproduced in Appendix 9.

36. The United Nations Development Programme (UNDP) indicated that its country office in Myanmar had recently carried out a thorough review of its project activities in Myanmar in the context of the Conference resolution and had confirmed that there were no UNDP-funded activities which directly or indirectly supported the practice of forced or compulsory labour. The UNDP would continue to monitor this situation very closely during the implementation of its project activities. Attached to the communication was a "note on UNDP's activities in Myanmar in the context of the ILO resolution", which gave details of UNDP's assistance to Myanmar and discussed any impact this assistance might have on the practice of forced labour. This note is reproduced in Appendix 10.

37. The United Nations Children's Fund (UNICEF) indicated that it had evaluated the impact that its activities might have on forced labour and concluded that by design and practice its programme in Myanmar neither directly nor indirectly abetted the practice of forced labour. A new country programme had just taken effect and during development great care had been taken to avoid association with parties involved in the practice of forced labour. Community participation in its projects was strictly on a volunteer basis, and at all levels, all possible precautions were taken to prevent support of forced labour in the organization's operations.

38. UNAIDS indicated that with respect to its activities in Myanmar its co-sponsors had established close working relationships with the Ministry of Health as well as international, national and local non-government organizations. It had reviewed the modalities of its work in light of operative paragraph 1 of the Conference resolution and had no reason to believe that the Ministry of Health had violated this provision. It also noted that all UN agencies operating in Myanmar had their programmes examined by their respective Boards to ensure adherence to international conventions. Its partnerships with international NGOs had been consistently guided by protocols widely recognized in the humanitarian field. In addition, those organizations were signatories to a code of conduct that ensured a high level of ethical programming and operations.

39. The United Nations Population Fund (UNFPA) indicated that although Myanmar was one of the priority countries under its resource allocation programme, it had not yet supported a full-scale country programme due largely to the prevailing political situation. It allocated less than $1 million annually for reproductive health activities. No UNPFA-funded activities benefited from or contributed to any form of forced labour, be it directly or indirectly.

40. The World Food Programme (WFP) stated that it operated exclusively in the Northern Rakhine State of Myanmar, which was a food deficit area. It had been working in the area, in coordination with UNHCR, since 1994 in such activities as relief, food for education, and food for community asset creation (FCAC). Workers received a daily food ration of 3.5 kg of rice for a family of five. FCAC activities were community based and voluntary, and mainly involved the building of irrigation dams, village access roads and the upgrading of township roads.

41. The International Civil Aviation Organization (ICAO) stated that it conducted technical cooperation activities in Myanmar which were for the safety and efficiency of civil aviation in the country and to facilitate safe movement of international civil aviation overflying the airspace of Myanmar. Its ongoing technical cooperation activities in this regard were related to the procurement of essential communication and navigation equipment and for the enhancement of capabilities with respect to the overseeing of flight safety. Technical assistance had also been offered to the Department of Civil Aviation of Myanmar to upgrade the capability of the Civil Aviation Training Centre and for the expansion of Hanthawadi International Airport at Yangon. The ICAO stressed that its technical cooperation activities in Myanmar did not, to its knowledge, directly or indirectly abet the practice of forced or compulsory labour.

42. The International Maritime Organization (IMO) indicated that Myanmar had been chosen to participate in four regional projects for Asia, which were still ongoing. These projects promoted ship inspections by port States, safety of non-convention ships, training for maritime instructors and examiners and port State control officers. In addition, some IMO courses and publications had been provided to Myanmar in 2000, following a needs assessment of the maritime training institutes in the country. Accordingly, the IMO's technical assistance in improving the competency and skills of maritime personnel did not have the effect of directly or indirectly abetting the practice of forced or compulsory labour in Myanmar.

43. The World Trade Organization (WTO) indicated that the matter would be followed up in the WTO with the Chairperson of the General Council. WTO rules did not afford the secretariat authority to adopt an independent line of action in matters such as these. WTO members had to decide on any course of action.

44. The Universal Postal Union (UPU) stated that it had looked into the matter and was not aware of any practice of forced or compulsory labour in the postal sector in Myanmar. If there were at all any such practice then it would most likely exist in remote rural areas. Myanmar was not a member of the UPU's elective bodies and the UPU had a rather limited cooperation with Myanmar at the official ministerial level. It was aware, however, that postal services were still under the direct supervision of the Myanmar Government, which meant that fundamental human rights were more likely to be fully observed in this sector. It therefore felt that there were no legal or other reasons for ceasing any official postal relations with Myanmar.

45. The Inter-Parliamentary Union (IPU) stated that since Myanmar did not have a parliament, no contacts were maintained with the authorities in the country. The only dealings with Myanmar were in the context of the IPU's Committee on the Human Rights of Parliamentarians which since 1991 had examined the cases of members of the Myanmar Parliament who were selected in 1990 and were to date prevented from exercising the mandate that was entrusted to them, in particular the cases of those who were in detention and could therefore be subject to forced labour. The IPU provided the text of its most recent resolution on Myanmar, adopted in October 2000, which "called again on its member parliaments to press for the respect of democratic principles in Myanmar and to show their solidarity with their elected colleagues from the Pyithu Hluttaw (Myanmar Parliament) by whatever means they deemed appropriate ...".

46. The African Development Bank Group, the International Telecommunication Union, the Nordic Council, the Organisation for Economic Co-operation and Development (OECD), the Pan American Health Organization, and the Arab Labour Organization stated that they had no relations with Myanmar that could be taken advantage of to perpetuate or extend the practice of forced or compulsory labour referred to by the Commission of Inquiry. The Asian Development Bank stated that it presently had no active operations in Myanmar and that the latest loan dated back to 1987 and the latest technical assistance to 1988.

Other relevant information received

Correspondence between the Government of Myanmar and the United Nations

47. The Office received from the United Nations copies of correspondence between the Government of Myanmar and the United Nations Secretary-General. In a communication dated 8 January 2001 the Government of Myanmar informed the Secretary-General of certain action that it had taken to implement the recommendations of the Commission of Inquiry and stated that the decision of the Governing Body was "a grave injustice". The Government also considered that the measures contained in the Conference resolution calling on other international organizations to "impose sanctions" against Myanmar "clearly overstepp(ed) the constitutional mandate of the ILO". The Government called on the Secretary-General in his role as the Chief Executive of the entire UN system to use his good offices to prevent these measures being taken. The Government was greatly concerned that the outcome from such extreme measures would set a dangerous precedent for the entire UN system. The Secretary-General responded in a letter dated 24 January 2001, noting that the Conference resolution was a decision of an inter-governmental body and that the ILO Director-General was mandated to implement it. The Secretary-General also suggested that the Government might wish to consider writing to the ILO Director-General expressing its readiness to receive a mission to assess and verify the progress made on the forced labour issue before the next meeting of the Governing Body.

Communications from groups in Myanmar regarding the Governing Body conclusions

48. An "open letter regarding ILO decision on Myanmar" dated 29 November 2000 from "Workers of Myanmar" was received by the Director-General. The letter stated that it was from 18 million workers employed by public and private enterprises. The workers believed that the Governing Body's conclusions would have a direct and immediate negative impact on the workforce. The Government of Myanmar had passed strong penal laws to prohibit forced labour and the workers believed that the ILO had already succeeded in bringing better working conditions for the workers in Myanmar. The workers therefore petitioned the ILO to reconsider its actions and maintain a constructive partnership with Myanmar.

49. An open letter of the same title and same date was also received from the "International Business Community in Myanmar". The letter stated that the International Business Community was deeply disappointed by the Governing Body's conclusions. The wide range of businesses it represented employed a total of over half a million workers in Myanmar, and indirectly provided employment to many more. It suggested that the "sanctions" would only hurt the majority of Myanmar workers, rather than helping them. The ILO had secured the issuance by the Myanmar authorities of a number of orders making forced labour illegal and the ILO should remain constructively engaged with Myanmar to review compliance with these orders. It urged the ILO member States and workers' and employers' organizations to carefully reconsider their position, as it was concerned for the real welfare of workers in Myanmar. It also urged the Government of Myanmar to maintain a positive dialogue with the ILO.

Information on action taken in support of the Conference resolution

50. The Office received copies of letters from a number of national workers' organizations to their governments regarding the Conference resolution.

51. The National Automobile, Aerospace, Transportation and General Workers' Union of Canada (CAW) called on the Canadian Government to act upon the Conference resolution without delay, beginning with an immediate halt to the activities of all Canadian commercial and economic interests in Myanmar, including a ban on imports from that country, pending a comprehensive review. Such a review had to prove unequivocally that these activities did not benefit in any way, or encourage in any form, the practice of forced labour. The Confédération des syndicats nationaux requested information from the Canadian Government regarding the mechanisms set up by the Government to ensure that Myanmar implemented the recommendations of the Commission of Inquiry, and insisted that Canada took all means at its disposal to ensure the implementation of these recommendations. The Canadian Labour Congress communicated to the Canadian Government the text of a statement on Myanmar to be adopted by its Executive Committee and Council. The Congress would continue to monitor Canadian investment directly or indirectly connected to forced labour in Myanmar. The Congress was encouraging its members to boycott products imported from Myanmar. The Canadian Government should now take a number of concrete steps regarding Myanmar, including researching, monitoring and reporting on investments and imports, reviewing the Special Economic Measures Act to allow for concrete and specific measures to be taken, and convening a meeting, with the participation of the Congress, of the Government's Working Group on Corporate Social Responsibility to jointly develop steps to address the issue.

52. The Centrale des Syndicats des Travailleurs du Rwanda and the Bangladesh Jatio Sramik League urged their respective governments to take action with regard to the Conference resolution.

53. The Lanka Jathika Estate Workers' Union recommended that the Sri Lankan Government take up the matter of the Conference resolution with the Government of Myanmar and urge it to implement the recommendations of the Commission of Inquiry, suggested that the leading government trade union, possibly with the assistance of the Labour Ministry, coordinate a joint representation of all unions to the Government of Myanmar, and noted that a similar protest and appeal by the Employers' Federation would be appropriate.

54. The Office also received information from two international workers' organizations regarding action taken in support of the Conference resolution.

55. In a communication dated 26 January 2001, Union Network International (UNI) transmitted the report of a joint mission to the Thai-Myanmar border that it had conducted with the ICFTU in January 2001. The mission had visited two sites on the border and met with numerous refugees and trade union activists operating in Mon State and Karen State. The persons met noted that the Conference resolution and resulting international pressure had been effective to a certain extent, but there was continuing use of forced labour or payments of money having to be made in lieu of force labour. There were numerous killings and destruction of paddy fields and villages causing thousands to be displaced, particularly in Karen State. The majority of those displaced were starving and suffering from disease. All persons that the mission met, including hundreds of refugees, supported the imposition of more comprehensive sanctions on Myanmar by the international community. While they accepted that ordinary people would suffer as a consequence of sanctions, they were of the strong opinion that it was necessary to force the Myanmar authorities to restore democracy and end the use of forced labour. The mission recommended that trade unions should continue to provide moral and financial support to the Federation of Trade Unions of Burma (FTUB), that UNI should work closely with all its affiliates in the finance sector to develop a coordinated strategy to discourage any investments or provision of financial services to business related to Myanmar, that UNI might consider working closely with its affiliates in other strategic sectors to put further economic pressure on the Myanmar authorities, that UNI would provide training and assistance to the FTUB and other unions, as well as humanitarian assistance for displaced civilians and refugees, and that the ICFTU/Global Unions Conference on Myanmar to be held in Tokyo from 28 February to 1 March 2001 would be a timely opportunity to express commitment to the struggle for the restoration of democracy and respect for human rights and trade union rights in Myanmar.

56. A communication dated 16 February 2001 from the ICFTU provided abundant information regarding the current practice of forced labour in Myanmar (dealt with in the following section of this document), as well as information on action taken by the ICFTU in support of the Conference resolution. As regards action taken, the ICFTU indicated that it had sought to review relations maintained with Myanmar by its constituents to determine which of these relations might have the effect of aiding Myanmar to perpetuate the system of forced labour. However, to the best of its knowledge neither the ICFTU, the international trade secretariats, their regional organizations, nor any of their affiliates maintained any relation with the Myanmar regime. Any relationship which they may have with Myanmar was limited exclusively to the promotion of workers' fundamental and other human rights. In January 2001, the ICFTU issued a circular to all its 221 affiliated national union centres in 148 countries, its regional organizations, all its executive board members and to the international trade secretariats, requesting them to take a number of steps with respect to the Conference resolution. These steps included requesting their respective governments and national employers' organizations to provide a complete list of enterprises based in their respective countries maintaining trade relations with Myanmar, and requesting their respective governments to provide comprehensive information about the total value of that country's trade with Myanmar, taking into account a list of products, provided by the ICFTU, production of which might involve forced labour. A briefing paper appended to the circular discussed far-reaching measures, including trade and investment bans, on the grounds that economic engagement with Myanmar supported the military regime.

57. The ICFTU communication also provided information on other steps taken by it and its affiliates. Prior to the departure of the recent EU delegation to Myanmar, the ICFTU had briefed one of the members of the delegation on its views. An ICFTU affiliate, LO-Sweden, had also briefed its own Government which, as holder of the rotating EU Presidency, led the delegation. In February 2001 the ICFTU had given its views to separate meetings of European NGOs and the Development Committee of the European Parliament. A number of ICFTU affiliates had reported taking various steps in support of the Conference resolution, including pressing their respective governments to strengthen their position against Myanmar (such as by the adoption of trade and investment bans), and calling for consumer boycotts of brands produced in Myanmar or made by companies having economic relations with Myanmar. A number of other initiatives were also taken at the regional or subregional level.

58. The ICFTU also noted in its communication that several EU governments remained reluctant to contemplate a strengthening of the EU Common Position when it is reviewed in April 2001, and that several governments seemed to be hoping for a notable improvement in the situation as a result of the "secret dialogue" between the Government of Myanmar and Daw Aung San Suu Kyi. These governments seemed to ignore the fact that similar talks in the past had yielded no result and that opposition members, who should never have been arrested in the first place, were often released shortly prior to important diplomatic visits. Some analysts believed that the ILO measures had played an important role in bringing about a dialogue between the Government and the National League for Democracy, and thus any hesitation in implementing the measures at this time might well jeopardize the talks.

59. The ICFTU noted that a comprehensive union strategy on Myanmar would be discussed at a conference to be held in Tokyo at the end of February. The Office was represented at this conference, which brought together trade unionists and international trade secretariats from across the Asia-Pacific regions, as well as from Europe and the United States. The Federation of Trade Unions of Burma (FTUB) was also represented. The conference adopted a Declaration, as well as a Plan of Action which is reproduced in Appendix 11.

Information regarding the current practice of forced labour in Myanmar

60. A considerable amount of information was also received from a number of international workers' organizations and other non-governmental organizations regarding the current practice of forced labour in Myanmar. The information concerning actual practice since November 2000 is briefly summarized below. (Endnote 5)

61. In its communication dated 26 January 2001, Union Network International indicated that, according to persons met by its joint mission, the Conference resolution and resulting international pressure had been effective to a certain extent, for example in helping to bring about the dialogue between the Myanmar authorities and Daw Aung San Suu Kyi. There was, however, continuing use of forced labour or payments of money having to be made in lieu of forced labour.

62. In its communication dated 16 February 2001, the ICFTU provided extensive information regarding the current practice of forced labour in Myanmar. The ICFTU noted that the military junta had not taken any action aimed at genuinely curbing, let alone eliminating, forced labour. Rather, military and administration officials at every level had taken action aimed at hiding the extent and nature of forced labour imposed on the civilian population, at weakening or nullifying the effects of any orders preventing forced labour that might have been issued by superior levels, and at preventing and countering, through propaganda, disinformation and deception, the measures foreseen by the Conference resolution. This action included a massive campaign of letter-writing and petition signing, by so-called "representative workers". Referring to the open letter discussed in paragraph 47 above, the ICFTU considered that this letter was part of a campaign by the Government to counter the Conference resolution.

63. Appended to the ICFTU communication were 21 documents providing over 300 pages of detailed information on the recent practice of forced labour in Myanmar. According to the ICFTU, this information showed that in practice forced labour had continued unabated. The information included detailed testimonies, reports and photographs of forced labour in various areas. On the basis of one of these reports alone, the ICFTU believed that at least 80,000 individuals, including women, children and elderly persons, from four districts of Karen State were forced to perform labour during the period November 2000 to January 2001. Two army officers were named in the report as having ordered and organised forced labour on road construction.

64. An essential part of the ICFTU submission consisted of translations, as well as many copies of originals, of orders demanding forced labour issued by the military or paramilitary groups under its control, as well as the local administration and the Myanmar Police Force. The submission contained over 500 such orders issued after May 1999, including many that had been issued since November 2000. These orders are similar in style, form and content to the orders already examined by the Commission of Inquiry and the regular ILO supervisory mechanisms and found to be authentic.

65. Details of a large number of specific instances of forced labour were contained in the ICFTU submission, relating to portering for regular patrols and military operations, the construction of roads, bridges and fences, the construction and servicing army camps, including the provision of building materials for these camps, the provision of transport for the military, the collection of firewood for use by army camps or in army-owned brick kilns, work in army-owned rice plantations, and work as unarmed sentries or messengers for the military. One order from an army battalion informed village heads that porters and bullock carts would only be requisitioned for use on military operations, and not for administrative purposes, but in general the pattern of forced labour demands appeared to be essentially unchanged from the practice reported by the Commission of Inquiry. The large number of different military units and other authorities issuing demands for forced labour suggested that the practice remained widespread.

66. A document prepared by the Federation of Trade Unions of Burma, and contained in the ICFTU submission, indicated that a number of means had been used by the authorities to cover up their use of forced labour. These included issuing orders for villagers to attend meetings at the army camp, where they were requisitioned for forced labour, rather than issuing explicit orders for forced labour; issuing undated, unsigned and unstamped orders; demanding that written orders were returned to the issuing army personnel; using civilian authorities to requisition labour on behalf of the military; and arbitrarily arresting young, healthy persons, who after a few days in prison would be sent to work as porters for the military, dressed in used army uniforms (but who could be recognized as porters as they were barefoot).

Concluding comments

67. In the light of the above, and in accordance with paragraph 1(a) of the Conference resolution, the question of the implementation of the Commission of Inquiry's recommendations and of the application of Convention No. 29 by Myanmar will be discussed by the 89th Session of the International Labour Conference, at a sitting of the Committee on the Application of Standards specially set aside for the purpose. In this connection, the Governing Body may wish to request the Director-General to transmit to the Conference Committee the present report together with the record of its consideration, as well as any further information of relevance for its discussion. The Conference Committee will have before it the report of the CEACR together with any other relevant information.

Geneva, 9 March 2001.

Appendix 1

Statement by His Excellency U Mya Than, Leader of the Myanmar Observer Delegation at the Plenary of the 279th session of the ILO Governing Body after the adoption of the decision on the situation of Myanmar (Endnote 6) (Geneva, 16 November 2000)

Mr. Chairman,

Today is indeed a sad and solemn day for the ILO. It will go down in the history of the ILO as the most deplorable day for this Organization.

Today Myanmar is singled out for punitive action. Tomorrow it may be another developing country. As all of us are aware, judgement of observance or non-observance of labour standards are, more often than not, subjective and arbitrary and, in some instances, even politically-motivated.

In the case of Myanmar, the problem arose from the arbitrary judgement, based on misinformation. This misinformation emanates from elements, opposed to the Myanmar Government, insurgent groups and self-proclaimed workers' organizations which are more politically-motivated than dedicated to promoting the interests of workers. One such dubious workers' organization has only a handful of members, who represent no one but themselves.

Mr. Chairman,

It is the sadder and the more deplorable, because the proponents of the draft decision to apply sanctions to Myanmar completely ignore the concrete and positive measures, taken by the Myanmar Government.

They turn a blind eye to the comprehensive, concrete and solid framework of legislative, executive and administrative measures put in place in Myanmar and the offer by the Myanmar Government to receive an ILO representative, based in the ILO Regional Office in Bangkok or in Geneva, to assist the national supervisory mechanism in the implementation of the ILC's recommendation.

Notwithstanding the more prudent approach, advocated by many of its Member States, the Governing Body has chosen the path of confrontation and coercion by applying sanctions under Article 33. The ASEAN Member States, together with like-minded countries, have expressed reservations against the action taken by the Governing Body. Myanmar appreciates the principled stands, taken by those countries that Article 33 of the ILO Constitution should never be invoked and that, sanctions should not be applied to a Member State.

Mr. Chairman,

It is most regrettable that a drastic decision, contrary to what many members believe in and uphold, was taken by the Governing Body. It is obvious that this unwarranted and unjustified action by the Governing Body is aimed at exerting pressure on Myanmar.

The decision, just taken by the Governing Body, will no doubt place the credibility, the integrity and the reputation of the Governing Body and the ILO in question. It penalizes a Member State which has been voluntarily cooperating with the ILO and has put in place the comprehensive, concrete and solid framework of legislative, executive and administrative measures in accordance with the ILC's resolution.

This action by the Governing Body is most unfair, most unreasonable and most unjust.

This decision is totally unacceptable to my delegation.

For these reasons, my delegation totally and categorically rejects the decision and dissociates itself from it and any activities and effects connected with it.

As such, Myanmar will cease to cooperate with the International Labour Organization in relation to the ILO Convention 29 and any activity connected with it.

I thank you, Mr. Chairman.

Appendix 2

Resumé of the concrete measures taken by the Myanmar Government (Endnote 7)

-- Since the 88th Session of the ILC which adopted the resolution on Myanmar, the following steps have been taken to put in place a framework of legislative, executive and administrative measures to comply with the ILC resolution.

-- Initially, intensive consultations were made among all departments and agencies concerned regarding the measures needed to fulfil the conclusions of the report of the Technical Cooperation Mission (TCM) and the ILC resolution.

-- An independent study group headed by Baron Walter von Marschall, former Ambassador of FRG to Myanmar was invited to have an independent opinion of what constitutes the satisfactory measures regarding the framework that the LC resolution referred to. The group visited Myanmar from 25 September to 6 October, 2000 and gave various options which in their opinion would satisfy the required measures mentioned in the ILC resolution.

-- In addition, at the invitation of the Government of Myanmar, a five-member Technical Cooperation Mission (TCM) visited Myanmar from 20 to 26 October, 2000. Based on the advices and suggestions of the TCM, a new legislative order was issued on 27 October 2000. The order made it clear that the requisition of forced labour or involuntary services is illegal and is an offence under the existing laws of the Union of Myanmar. It also spells out the consequences for the breach of the legislative order by explicitly spelling out that any one, including the members of the armed forces shall have action taken against him under Section 374 of the Penal Code or any other existing laws. In the words of the TCM, this order has general applicability.

-- This Order was supplemented by a directive from the State Peace and Development Council (SPDC), the highest organ of state power in Myanmar. The SPDC is the legislative authority, and as the TCM has pointed out, the highest military authority and the highest civilian authority in the country. This document, TCM pointed out "provides confirmation that there is political will at the highest level to reach a solution".

-- Apart from this legislative measure, concrete and detailed framework of administrative and executive measures have been instituted.

-- This consists of the Ministerial Committee headed by the Minister of Labour and the Implementation Committee on Convention 29 as well as a national supervisory mechanism for monitoring compliance.

-- Myanmar has thus put in place a concrete, comprehensive and solid framework of legislative, administrative and executive measures to ensure that there is no forced labour both in law and in practice.

-- With regard to the ILO presence, Myanmar is also willing to accept an ILO representative, either based in the Regional Office in Bangkok or based in Geneva, to observe, assess or assist the national supervisory mechanism in the implementation of Convention 29. The representative of ILO will be given full cooperation to effectively carry out his responsibilities. The representative will enjoy, for these purposes and for the duration of his mission, the same legal protection and status accorded to officials of comparable rank in the United Nations. The representative, either based in the ILO Regional Office in Bangkok or in Geneva, may make frequent visits to Myanmar, as the need arises.

-- In view of this concrete, comprehensive and solid framework of legislative and executive measures and Myanmar's willingness to address the issue of the ILO presence, the actions envisaged by the ILC are no longer required and necessary. The Members of the Governing Body ought to take the necessary decision so that the measures envisaged by the ILC will not come into effect on 30 November 2000.

Appendix 3

Communication dated 22 December 2000 from the Director-General to the Minister for Labour of the Government of Myanmar

Dear Mr. Minister,

I write concerning the action taken by the Governing Body on 16 November, at its 278th Session, with respect to the effect given by the Government of Myanmar to the recommendations of the Commission of Inquiry concerning the application of Convention No. 29. The Governing Body had before it on this occasion the report of the second ILO technical cooperation mission to Myanmar, which visited your country from 20 to 26 October.

While some of the positive developments reflected in the report of the technical cooperation mission and in subsequent documents provided by the authorities were acknowledged, the Governing Body was, as you know, not satisfied, that the conditions for the non-implementation of the measures listed in paragraph 1 of the Conference resolution had been met. These measures are taking effect on 30 November, and I have notified ILO Members and international organizations concerned accordingly, as contemplated in the relevant paragraph of the resolution.

At the same time, the strong sense of the Governing Body was, as noted by the Chair, that the Director-General should continue to extend cooperation to the Government of Myanmar in order to promote the full implementation by that Government of the recommendations of the Commission of Inquiry. This conclusion is indeed in line with the mandate I have received from the Conference itself.

The Governing Body debate underlined once more that the ILO's objective has always been, and remains, the implementation of the recommendations of the Commission of Inquiry. It is thus my sincere hope that the measures now in force will soon become unnecessary as a result of your Government's full application of these recommendations.

In that connection, I have noted that, according to a statement issued shortly after the debate by the Ministry of Foreign Affairs, Myanmar intends to adhere to and implement the positive measures taken at the end of the technical cooperation mission visit. Let me assure you that, for its part, the Office stands ready to extend its cooperation for the purposes of ensuring the implementation of the recommendations of the Commission of Inquiry in such a way that positive and credible developments could already be reported to the Governing Body at its next session.

Yours sincerely,

(Signed) Juan Somavia.

Appendix 4

Communication dated 11 February 2001 from the Government of Myanmar to the Director-General forwarded by the Permanent Mission of Myanmar

Excellency,

I received your letter of 22 December 2000 in which you were kind enough to inform that your office stands ready to extend cooperation to Myanmar.

Myanmar had received two Technical Cooperation Missions from ILO in our efforts to make our domestic legislation fully in line with Convention 29. With the assistance of the Technical Cooperation Mission which visited Myanmar from 20 to 26 October 2000, we had put in place a framework of legislative, executive and administrative measures to make forced labour illegal both in law and in practice. But powerful forces in the ILO Governing Body totally ignored the concrete measures taken by Myanmar as well as its demonstrated desire to cooperate with ILO. I regret to say that the way things were conducted at the 279th Session of the Governing Body was a grave travesty of the rules of procedure of the ILO. As a result, the proposal put forward by Malaysia on behalf of ASEAN countries, supported by India and China, to defer Implementation of the measures in ILC resolution on Myanmar was not put to a vote. The Governing Body's discussions on the matter, therefore, ended inconclusively. This has led to the entry into force of the measures envisaged in the ILC resolution. This is a great injustice on Myanmar, which had in good faith implemented its obligations under Convention 29.

However, we are resolute in our endeavours to implement the framework of legislative, executive and administrative measures which we have put in place. The Committee for implementation of Convention 29 is holding its regular meetings to review the situation. The national monitoring mechanism which we have put in place is also functioning smoothly. There had been a few cases where the latest legislative order was breached. These cases were investigated and necessary legal action was taken against the perpetrators.

I wish to thank you for your readiness to extend cooperation to Myanmar. I fully realize that our national efforts that involved ILO would receive better acceptance by our detractors.

However, under the present circumstances, until such time that Myanmar receives fair and equitable treatment that must necessarily be accorded to all members of the ILO, we must ourselves continue our national efforts for the total elimination of practice of force labour in Myanmar.

I wish to assure you that we will continue to take steps to ensure that forced labour is illegal in Myanmar both in law and in practice. I also wish to assure that we will resolutely implement the framework of legislative, executive and administrative measures we have put in place.

Yours sincerely,

(Signed) Major General Tin Ngwe,

Minister for Labour,

Union of Myanmar.

Appendix 5

Communication dated 1 March 2001 from the Director-General to the Minister for Labour of the Government of Myanmar

Dear Mr. Minister,

I acknowledge receipt of your letter dated 11 February 2001 in reply to mine of 22 December 2000, and would like to offer the following comments.

As regards the second paragraph of your letter, I can assure you that your views, as well as the text of the statement which your Ambassador intended to make and which reached the Chairman's Office after the closure of the session, will be reflected appropriately in the documentation before the next session of the Governing Body.

I have taken note of your statement that Myanmar is "resolute in our endeavours to implement the framework of legislative, executive and administrative measures which we have put in place" with a view to the total elimination of the practice of forced labour in Myanmar, and in particular of the information that some action has already been taken against the perpetrators of such practices.

However it is clear that Myanmar cannot expect to receive credit for these endeavours in the absence of an objective assessment of their practical implementation and actual impact. The ILO alone is in a position to provide such an assessment with the authority necessary to carry legal, practical and political consequences at the international level. This is all the more relevant in the light of the continuing flow of information from various sources concerning the issues in question.

For these reasons I would like to reiterate that the Office stands ready to engage in discussions about the possible format and modalities such an objective assessment could take. In my view, it would be highly desirable that such discussions take place before the next session of the Governing Body. It should be recalled that the International Labour Conference will, in accordance with paragraph 1(a) of its resolution, review the situation at its next session in June, on the basis of all relevant information then available.

Yours sincerely,

(Signed) Juan Somavia.

Appendix 6

Resolution adopted by the International Labour Conference at its 88th Session (June 2000)

The International Labour Conference,

Meeting at its 88th Session in Geneva from 30 May to 15 June 2000,

Considering the proposals by the Governing Body which are before it, under the eighth item of its agenda (Provisional Record No. 4), with a view to the adoption, under article 33 of the ILO Constitution, of action to secure compliance with the recommendations of the Commission of Inquiry established to examine the observance by Myanmar of its obligations in respect of the Forced Labour Convention, 1930 (No. 29),

Having taken note of the additional information contained in the report of the ILO technical cooperation mission sent to Yangon from 23 to 27 May 2000 (Provisional Record No. 8) and, in particular, of the letter dated 27 May 2000 from the Minister of Labour to the Director-General, which resulted from the mission,

Considering that, while this letter contains aspects which seem to reflect a welcome intention on the part of the Myanmar authorities to take measures to give effect to the recommendations of the Commission of Inquiry, the factual situation on which the recommendations of the Governing Body were based has nevertheless remained unchanged to date,

Believing that the Conference cannot, without failing in its responsibilities to the workers subjected to various forms of forced or compulsory labour, abstain from the immediate application of the measures recommended by the Governing Body unless the Myanmar authorities promptly take concrete action to adopt the necessary framework for implementing the Commission of Inquiry's recommendations, thereby ensuring that the situation of the said workers will be remedied more expeditiously and under more satisfactory conditions for all concerned;

1. Approves in principle, subject to the conditions stated in paragraph 2 below, the actions recommended by the Governing Body, namely:

(a) to decide that the question of the implementation of the Commission of Inquiry's recommendations and of the application of Convention No. 29 by Myanmar should be discussed at future sessions of the International Labour Conference, at a sitting of the Committee on the Application of Standards specially set aside for the purpose, so long as this Member has not been shown to have fulfilled its obligations;

(b) to recommend to the Organization's constituents as a whole - governments, employers and workers - that they: (i) review, in the light of the conclusions of the Commission of Inquiry, the relations that they may have with the member State concerned and take appropriate measures to ensure that the said Member cannot take advantage of such relations to perpetuate or extend the system of forced or compulsory labour referred to by the Commission of Inquiry, and to contribute as far as possible to the implementation of its recommendations; and (ii) report back in due course and at appropriate intervals to the Governing Body;

(c) as regards international organizations, to invite the Director-General: (i) to inform the international organizations referred to in article 12, paragraph 1, of the Constitution of the Member's failure to comply; (ii) to call on the relevant bodies of these organizations to reconsider, within their terms of reference and in the light of the conclusions of the Commission of Inquiry, any cooperation they may be engaged in with the Member concerned and, if appropriate, to cease as soon as possible any activity that could have the effect of directly or indirectly abetting the practice of forced or compulsory labour;

(d) regarding the United Nations specifically, to invite the Director-General to request the Economic and Social Council (ECOSOC) to place an item on the agenda of its July 2001 session concerning the failure of Myanmar to implement the recommendations contained in the report of the Commission of Inquiry and seeking the adoption of recommendations directed by ECOSOC or by the General Assembly, or by both, to governments and to other specialized agencies and including requests similar to those proposed in paragraphs (b) and (c) above;

(e) to invite the Director-General to submit to the Governing Body, in the appropriate manner and at suitable intervals, a periodic report on the outcome of the measures set out in paragraphs (c) and (d) above, and to inform the international organizations concerned of any developments in the implementation by Myanmar of the recommendations of the Commission of Inquiry;

2. Decides that those measures will take effect on 30 November 2000 unless, before that date, the Governing Body is satisfied that the intentions expressed by the Minister of Labour of Myanmar in his letter dated 27 May have been translated into a framework of legislative, executive and administrative measures that are sufficiently concrete and detailed to demonstrate that the recommendations of the Commission of Inquiry have been fulfilled and therefore render the implementation of one or more of these measures inappropriate;

3. Authorizes the Director-General to respond positively to all requests by Myanmar that are made with the sole purpose of establishing, before the above deadline, the framework mentioned in the conclusions of the ILO technical cooperation mission (points (i), (ii) and (iii), page 8/11 of Provisional Record No. 8), supported by a sustained ILO presence on the spot if the Governing Body confirms that the conditions are met for such presence to be truly useful and effective.

Appendix 7

Recommendations of the Commission of Inquiry (extracts)

In paragraph 539 of its report, the Commission of Inquiry urged the Government to take the necessary steps to ensure:

(a) that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Forced Labour Convention, 1930 (No. 29) as already requested by the Committee of Experts on the Application of Conventions and Recommendations and promised by the Government for over 30 years, and again announced in the Government's observations on the complaint. This should be done without further delay and completed at the very latest by 1 May 1999;

(b) that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military. This is all the more important since the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or Towns Act. Thus, besides amending the legislation, concrete action needs to be taken immediately for each and every of the many fields of forced labour examined in Chapters 12 and 13 (of the Commission's report) to stop the present practice. This must not be done by secret directives, which are against the rule of law and have been ineffective, but through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. Also, action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required;

(c) that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced, in conformity with Article 25 of the Convention. This requires thorough investigation, prosecution and adequate punishment of those found guilty. As pointed out in 1994 by the Governing Body committee set up to consider the representation made by the ICFTU under article 24 of the ILO Constitution, alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), the penal prosecution of those resorting to coercion appeared all the more important since the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government's statements to the committee, was all the more likely to occur in actual recruitment by local or military officials. The power to impose compulsory labour will not cease to be taken for granted unless those used to exercising it are actually brought to face criminal responsibility. (Endnote 8)

Appendix 8

Observations from the CEACR (2001 Report)

Myanmar (ratification: 1955)

1. The Committee notes that the Government has not supplied a report on the application of the Convention. Following the recommendations of the Commission of Inquiry established to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), the Committee has, however, taken note of the following information:

-- the information presented by the Government to the Director-General of the ILO in communications dated 21 January, 20 March, 27 May, 29 October (as supplemented subsequently), and 3, 15 and 17 November 2000;

-- the information submitted to, and the discussions held in, the Governing Body of the ILO at its 277th and 279th Sessions in March and November 2000;

-- the information and discussion at the International Labour Conference at its 88th Session (May-June 2000);

-- the resolution adopted by the International Labour Conference at its 88th Session concerning the measures recommended by the Governing Body under article 33 of the ILO Constitution on the subject of Myanmar to secure compliance with the recommendations of the Commission of Inquiry, and the entry into effect of those measures on 30 November 2000, following consideration of the matter by the Governing Body at its 279th Session (November 2000);

-- the resolutions adopted by the General Assembly of the United Nations at its 54th Session (17 December 1999) and by the United Nations Commission on Human Rights at its 56th Session (March-April 2000) on the situation of human rights in Myanmar (extracts in International Labour Conference, 88th Session, Geneva, 2000, Provisional Record No. 4, Annex III);

-- the second report of the Director-General of the ILO to the members of the Governing Body on measures taken by the Government of Myanmar, dated 25 February 2000;

-- the interim report prepared by judge Rajsoomer Lallah, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, dated 22 August 2000 ((UN document A/55/359); and the note by the Secretary-General of the United Nations on the same subject, dated 20 October 2000 (UN document A/55/509);

-- the reports of the ILO technical cooperation missions to Myanmar of May 2000 ((ILC, 88th Session, Geneva, 2000, Provisional Record No. 8) and October 2000 (GB.279/6/1 and Add.1);

-- a communication dated 15 November 2000 in which the International Confederation of Free Trade Unions submitted to the ILO voluminous documentation referring to the imposition of forced labour in Myanmar during the period June-November 2000, a copy of which was sent to the Government for such comments as it may wish to present;

-- a press release issued on 17 November 2000 by the Ministry of Foreign Affairs of the Union of Myanmar in Yangon, and an information sheet issued by the Myanmar Information Committee in Yangon on a press conference held on 18 November 2000 by the Government on the decision of the ILO Governing Body to activate measures on the subject of Myanmar.

2. Information available on the observance of the Convention by the Government of Myanmar will be discussed in three parts, dealing with: (i) the amendment of legislation; (ii) any measures taken by the Government to stop the exaction in practice of forced or compulsory labour and information available on actual practice; (iii) the enforcement of penalties which may be imposed under the Penal Code for the exaction of forced or compulsory labour.

I. Amendment of legislation

3. In paragraph 470 of its report of 2 July 1998, the Commission of Inquiry noted:

... that section 11(d), read together with section 8(1)(g), (n) and (o) of the Village Act, as well as section 9(b) of the Towns Act provide for the exaction of work or services from any person residing in a village tract or in a town ward, that is, work or services for which the said person has not offered himself or herself voluntary, and that failure to comply with a requisition made under section 11(d) of the Village Act or section 9(b) of the Towns Act is punishable with penal sanctions under section 12 of the Village Act or section 9(a) of the Towns Act. Thus, these Acts provide for the exaction of "forced or compulsory labour" within the definition of Article 2(1) of the Convention.

The Commission of Inquiry further noted that the wide powers to requisition labour and services under these provisions do not come under any of the exceptions listed in Article 2, paragraph 2, of the Convention and are entirely incompatible with the Convention. Recalling that the amendment of these provisions had been promised by the Government for over 30 years, the Commission urged the Government to take the necessary steps to ensure that the Village Act and the Towns Act be brought into line with the Convention without further delay, and at the very latest by 1 May 1999 (paragraph 539(a) of the Commission's report).

4. In its previous observation, the Committee noted that by the end of November 1999, neither the Village Act nor the Towns Act had been amended, nor had any draft law proposed or under consideration for that purpose been brought to the knowledge of the Committee. However, an "Order Directing Not to Exercise Powers Under Certain Provisions of the Town Act, 1907 and the Village Act, 1907" (No. 1/99) was issued by the Government on 14 May 1999, which in fact still reserved the exercise of powers under the relevant provisions of the Village Act and the Towns Act which remain incompatible with the requirements of the Convention.

5. The Committee notes from the report of the October 2000 ILO technical cooperation mission to Myanmar (GB.279/6/1, paragraphs 9 and 10, Annexes 13 and 19) that a draft text providing for the amendment of the Village Act and the Towns Act through an amendment of Order No. 1/99 was not retained by the Government. However, the same report (in Annex 19) reproduces the English text of an "Order Supplementary Order No. 1/99" made by the Ministry of Home Affairs under the direction of the State Peace and Development Council on 27 October 2000 which modifies Order No. 1/99 so as to order "responsible persons including members of the local authorities, members of the armed forces" etc. "not to requisition work or service notwithstanding anything contained" in the relevant sections of the Towns and Village Acts, except in cases of emergency as defined in Article 2(2)(d) of the Convention (GB.279/6/1, Annex 19). The Burmese text of this Order of 27 October, which was to be published in the Myanmar Gazette, has not yet been supplied to the ILO.

6. The Committee observes that the amendment of the Village and Towns Acts sought by the Commission of Inquiry as well as the present Committee and promised by the Government for many years has not yet been made. It again expresses the hope that the Village Act and the Towns Act will at last be brought into conformity with the Convention.

7. The Committee nevertheless notes that Order No. 1/99 as supplemented by the Order of 27 October 2000 could provide a statutory basis for ensuring compliance with the Convention in practice, if given effect bona fide not only by the local authorities empowered to requisition labour under the Village and Towns Acts, but also by civilian and military officers entitled to call on the assistance of local authorities under the Acts. This, in the view of the Committee, calls for further measures to be undertaken, as indicated by the Commission of Inquiry in its recommendations in paragraph 539(b) of its report.

II. Measures to stop the exaction in practice of forced or compulsory labour and information available on actual practice

A. Measures to stop the exaction in practice of forced or compulsory labour

8. In its recommendations in paragraph 539(b) of its report of July 1998, the Commission of Inquiry indicated that steps to ensure that in actual practice no more forced or compulsory labour be imposed by the authorities, in particular the military, were:

... all the more important since the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or Towns Act. Thus, besides amending the legislation, concrete action needs to be taken immediately for each and every of the many fields of forced labour examined in Chapters 12 and 13 (of the Commission's report) to stop the present practice. This must not be done by secret directives, which are against the rule of law and have been ineffective, but through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. Also, action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required ... .

9. The Committee notes from the report of the October 2000 ILO technical cooperation mission to Myanmar, the suggestion made by the mission of a Supplementary Order or directive from the Office of the Chairman of the State Peace and Development Council concerning requisition of labour or services (GB.279/6/1, Annex 13). The suggested text was to order all state authorities, including military, police and civilian authorities and their officers, not to requisition persons to provide labour or services for any purpose, nor to order others to requisition such labour or services, regardless of whether or not payment is made for said labour or services, except in cases of emergency as defined in Article 2(2)(d) of the Convention. The suggested prohibition was to include but not be limited to the requisition of labour or services for the following purposes:

(a) portering for the military (or other military/paramilitary groups, for military campaigns or regular patrols);

(b) construction or repair of military camps/facilities;

(c) other support for camps (such as guides, messengers, cooks, cleaners, etc.);

(d) income generation by individuals or groups (including work in army-owned agricultural and industrial projects);

(e) national or local infrastructure projects (including roads, railways, dams, etc.);

(f) cleaning/beautification of rural or urban areas.

Similar prohibitions were to apply to the requisition of materials or provisions of any kind and to demands of money except where due to the State or to a municipal or town committee under relevant legislation. Furthermore, the suggested text was to provide that if any state authority or its officers requires labour, services, materials or provisions of any kind and for any purpose, they must make prior budgetary arrangements to obtain these by a public tender process or by providing market rates to persons wishing to supply these services, materials or provisions voluntarily, or wishing to offer their labour.

10. The Committee notes that the text suggested by the mission was not adopted, but that the English versions of several instructions dated 27 and 28 October 2000 and 1 November 2000 were forwarded to the ILO after the departure of the mission and reproduced in addenda to the mission's report (GB.279/6/1(Add.1)(Rev.1) and (Add.2)).

11. The instruction dated 27 October 2000 "Prohibiting Requisition of Forced Labour" is signed for the Director-General of the Police Force and addressed to all units of the police force. The instruction dated 28 October 2000 on the same subject is addressed by the Director-General of the General Administration Department of the Ministry of Home Affairs to all State/Divisional Commissioners and General Administration Departments and requires, inter alia, Order No. 1/99 and the order supplementing it to be displayed separately on noticeboards of all the levels of peace and development councils as well as the General Administration Departments.

12. The instruction dated 1 November 2000 "Prohibiting Requisition of Forced Labour" is signed at the highest level, by Secretary-1 of the State Peace and Development Council, and addressed to the Chairmen of all State and Divisional Peace and Development Councils. The latter instruction thus reaches beyond institutions that come under the authority of the Ministry of Home Affairs. It is, however, primarily directed to the enforcement of Order No. 1/99 and the Order of 27 October 2000 supplementing it, which are limited in scope to the requisition of forced labour under the Village Act and the Towns Act, i.e. not by civilian or military state officers but by local authorities, who may requisition labour under the Acts when called upon to provide assistance to civilian and military state officers. Nevertheless, the instruction dated 1 November interprets the Supplementing Order of 27 October 2000 as follows:

2. ... The Supplementing Order renders the requisition of forced labour illegal and stipulates that it is an offence under the existing laws of the Union of Myanmar. Responsible persons, including the local authorities, members of the armed forces, members of the police force and other public service personnel are also prohibited not to requisition forced labour and are instructed to supervise so that there shall be no forced labour.

It would appear to the Committee that a bona fide application of this prohibition should cover the typical case of members of the armed forces who order local authorities to provide labourers, even if the manner of complying with such order - through requisition or hiring of labourers or otherwise - is left to the local authorities.

13. The instruction dated 1 November 2000 continues as follows:

3. Therefore, it is hereby directed that the state and divisional peace and development councils shall issue necessary instructions to the relevant district and township peace and development councils to strictly abide by the prohibitions contained in Order No. 1/99 and the Supplementing Order of the Ministry of Home Affairs and also to effectively supervise to ensure that there shall be no forced labour within their respective jurisdictions.

4. Responsible persons, including members of the local authorities, members of the armed forces, members of the police force and other public service personnel who fail to abide by the said Order No. 1/99 and the Supplementing Order shall be prosecuted under section 374 of the Penal Code or any other existing laws.

It would appear to the Committee that again, as set out in paragraph 12 above, a bone fide application of the instruction would include, in the scope of point 4 of the instruction, members of the armed forces who order local authorities to supply labour.

14. It remains to be seen whether the "necessary instructions" yet to be issued by the state and divisional peace and development councils under point 3 of the instruction of 1 November will contain the kind of details necessary for a feasible implementation. Such details were set out by the Commission of Inquiry in paragraph 539(b) of its report and included by the October 2000 technical cooperation mission in its suggestion mentioned in paragraph 9 above.

15. The three instructions forwarded so far to the ILO do not yet contain any positive indication on the manner in which authorities that have been used to rely on forced and unpaid labour contributions of the population are hereafter to make realistic provision for the labour and services they may require.

16. Furthermore, the three instructions do not spell out the various forms of forced labour found by the Commission of Inquiry and this Committee to be mainly imposed in practice, as listed in paragraph 9 above. In this regard, the Committee recalls that most of the forms of forced labour or services requisitioned concerned the military. The Committee notes that "members of the armed forces" are specifically included among the responsible persons listed in point 4 of the instruction dated 1 November 2000 (quoted in paragraph 13 above). However, in point 3 of the same instruction, the order to issue the necessary further - and, hopefully, more detailed - instructions is addressed to the state and divisional peace and development councils (which in fact include officers of the armed forces), but not to the regional commanders of the armed forces in their military capacity.

17. In the absence of specific and concrete instructions to the civilian and military authorities containing a description of the various forms and manners of exaction of forced labour, the application of the provisions adopted so far turns upon the interpretation in practice of the notion of "forced labour". This cannot be taken for granted, as shown by the various Burmese terms used sometimes when labour was exacted from the population - including "loh ah pay", "voluntary" or "donated" labour. The need for clarity on the point is underscored by the Government's recurrent attempts to link the pervasive exaction of labour and services by mainly military authorities to merit which may be gained in the Buddhist religion from spontaneously offered help. The Commission of Inquiry recalled in paragraph 539(c) of its report that "the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government's statements" was "all the more likely to occur in actual recruitment by local or military officials".

18. Thus, clear instructions are still required to indicate to all officials concerned, including officers at all levels of the armed forces, both the kinds of tasks for which the requisition of labour is prohibited, and the manner in which the same tasks are henceforth to be performed. The Committee hopes that the necessary detailed instructions will soon be issued, and that, in the words of paragraph 539(b) of the Commission of Inquiry's report, provision will also be made for "the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour".

B. Information available on actual practice

(a) The practice August 1998 to December 1999

19. In his reports dated 21 May 1999 and 25 February 2000 to the members of the Governing Body, the Director-General indicated that all information on actual practice that was received (from workers' and employers' organizations, intergovernmental organizations and governments of member States of the ILO) in reply to his requests, referred to continued widespread use of forced labour by the authorities, in particular by the military.

(b) Information on the practice up to November 2000

20. In its communication dated 15 November 2000, the ICFTU refers to the persistence of severe breaches of the Convention by the military authorities. Documentary appendices enclosed by the ICFTU represent over 1,000 pages drawn from over 20 different sources and include reports, interviews of victims; over 300 forced labour orders, photographs, video recordings and other material. A few events described therein took place in the first half of the year 2000; an overwhelmingly large proportion of the documents concerns the period June to November 2000.

21. An essential part of the ICFTU submission consists of hundreds of "forced labour orders", issued mainly by the army but also by armed groups under its control and elements of the local administration. As stated by the ICFTU, these are similar in kind, shape and contents to the orders already examined by the Commission of Inquiry and the regular ILO supervisory mechanisms and found by same to be authentic. Documentary materials submitted refer to the persistence on a large scale of forced portering, including by women, and the murder of forced porters no longer able to carry their burden. In addition to forced portering, all other forced labour practices identified previously by the Commission of Inquiry are referred to for the period June to November 2000. A great number of specific reported instances include forced labour for the building and maintenance of roads, bridges, railroads, water canals, dikes, dams and reservoirs, as well as for the building, repair, maintenance and servicing of army camps; and the requisition of labour as well as seeds, fertilizer, materials and equipment for army-held agricultural land, forests and installations.

22. As indicated above, copies of the ICFTU communication of 15 November 2000, including the voluminous documentation submitted, were sent to the Government for such comments as it may wish to present.

III. Enforcement

23. In paragraph 539(c) of its recommendations the Commission of Inquiry urged the Government to take the necessary steps to ensure:

... that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced labour or compulsory labour be strictly enforced, in conformity with Article 25 of the Convention. This requires thorough investigation, prosecution and adequate punishment of those found guilty.

24. In practice, no action whatsoever under section 374 of the Penal Code has so far been brought to the knowledge of the Committee.

25. The Committee notes that point 4 of the instruction dated 1 November 2000 from the State Peace and Development Council to All State and Divisional Peace and Development Councils, reproduced in paragraph 13, provides for the prosecution of "responsible persons" under section 374 of the Penal Code. Similar clauses are included in point 3 of the instruction dated 27 October, and point 6 of the instruction dated 28 October, referred to in paragraph 11 above. Moreover, under points 4 to 6 of the instruction dated 27 October 2000, addressed by the Director-General of the Police Force to all units of the police force:

4. If any affected person files a verbal or written complaint to the police station of having been forced to contribute labour, the latter shall record the complaint in Forms A and B of the police station and send the accused for prosecution under section 374 of the Penal Code.

5. It is hereby directed that the police stations and units concerned at various levels shall be further instructed to make sure their strict compliance with the said Order as well as to supervise so that there shall be no requisition of forced labour. A copy of the Order Supplementing Order No. 1/99 issued by the Ministry of Home Affairs on 27 October 2000 is enclosed herewith.

6. It is instructed to acknowledge receipt of this directive and to report back actions taken on the matter.

26. With regard to point 4 of the latter instruction (dated 27 October 2000) the Committee hopes that prosecutions under section 374 of the Penal Code will be brought by the law enforcement agencies on their own initiative, without waiting for complaints by the victims, who may not consider it expedient to denounce the "responsible persons" to the police. The Committee hopes that in commenting on indications that the imposition of forced labour has continued beyond October 2000, the Government will also report on any concrete action taken under section 374 of the Penal Code.

27. The Committee has noted the assurance, in the Government's letter dated 29 October 2000 to the Director-General of the ILO, of the "political will to ensure that there is no forced labour in Myanmar, both in law and in practice". It also has taken due note of the Order Supplementing Order No. 1/99 and the three instructions issued between 27 October and 1 November 2000, and of the view of the Employer members of the Governing Body at its 279th Session (November 2000) that this was "too little too late". At a press conference held 18 November 2000 in Yangon on the decision of the Governing Body of the ILO to activate measures on the subject of Myanmar, the Government indicated that it would no longer cooperate with the ILO in relation to the Forced Labour Convention, 1930 (No. 29), but that it would continue to take steps to prevent forced labour, as this was its policy. The Committee hopes that the Government will thus at last take the necessary measures to ensure the observance in law as well as in practice of the Convention, a basic human rights instrument freely ratified by Myanmar. It also hopes that the Government, which had failed to take part in the proceedings before the Commission of Inquiry, will avail itself of the opportunity to present its views and progress in reporting on the application of the Convention, in conformity with its obligations under article 22 of the ILO Constitution.

(The Government is asked to report in detail in 2001.)

Appendix 9

Note on UNHCR's activities in Myanmar and compulsory labour

UNHCR has been operational in two districts of Myanmar since 1994 in facilitating repatriation and reintegration of approximately 230,000 Muslim returnees from Bangladesh into Northern Rakhine State. The activities of UNHCR are geared towards reintegration and stabilization of some 800,000 Muslim population including returnees in Maungdaw and Buthiadaung districts. UNHCR and its implementing partners provide assistance activities under various key sectors with the aim to improve and stabilize the social and economic environment in Northern Rakhine State. UNCHR conducts field monitoring of a number of protection issues affecting the Muslim population including forced labour, and is promoting a more secure legal status for this population. As regards compulsory labour, UNHCR undertakes advocacy against its use, in particular through dialogue and engagement with officials at the local level.

Areas of intervention

Agriculture

Considering the chronic rice deficit in the area of operation, efforts to increase the production of rice are a given high priority. WFP's past assistance has helped to ease the shortage of rice. Dams and dykes will also be constructed to produce a second rice crop to targeted areas in three townships. At the same time, livestock and aquaculture projects, combined with training courses to enhance the capacity building of the local population are taking place. There is no recourse to compulsory labour in this field of activities and any labour needed for construction purpose is contracted out or paid for as appropriate.

Health

UNHCR recognizes that good health and physical well-being constitute an integral part of any economic and social stability. Compared to other parts of Myanmar, the area of UNHCR's operation is characterized by its remoteness, rough geographical terrain, dense population, and the low literacy rate. These factors contribute to the apparent non-accessibility and underutilization of existing services, which are manifested in the high infant and maternal morbidity and morality, and high prevalence of malnutrition, malaria, tuberculosis and diarrhoeal diseases. These health challenges are further complicated by the under-equipped and under-staffed health facilities.

UNHCR started its health assistance projects in 1995. It invested not only in upgrading government health facilities, but also in strengthening the conventional health delivery system by improving its planning and management functions, targeting an immediate impact at grass-roots community level to introduce changes in health service provision and utilization. This strategy allows focusing on advocating integrated participatory development initiatives, which link health to education, training, income generation, environmental sanitation and other related sectors.

Health activities make the population more productive in life. Poor health leads the population to poverty as they cannot be economically viable. In this sector, there is no resort to compulsory labour.

Education

UNHCR attempts, through a variety of educational undertakings, to strengthen the links between and among the returnee population, the local Muslim residents and other communities in Northern Rakhine State. This is based on the understanding that education helps returnees' awareness. Education activities help the illiterate population to be literate increasing their coping mechanism including their communication with the authorities as well as non-Muslim community. In general it helps them to be more viable in various functions of life. There is no use of compulsory labour in this sector of activities.

Income generation

Considering that majority of the poorest of the poor - returnees and locals alike - are landless, casual labourers, UNHCR endeavours to promote among them, income-earning activities. Positive effects have been frequently reported in terms of an increased level of self-sufficiency which also resulted in affected family sending more children to schools for education.

The objective of these activities is to help them settle and integrate in the area, attain self-sufficiency, and be able to find their niches within the local economy. To meet this objective, an extensive programme providing financial assistance, training and agriculture activities has been implemented since 1995. For example, the population in general have more money than before. In view of no taxation, villagers are expected to contribute to the development of Northern Rakhine State. In the past this was seen as a direct contribution of labour, so called compulsory or even forced labour. Now more villagers can afford paying a small amount of contribution in money so that if there is a need to fix a bridge the money they contribute could be used to hire casual labourers.

Rural infrastructure

Aside from the ongoing work of construction school jetties, health centres, ponds, wells, dams, etc., UNHCR, BAJ and the Government of the Union of Myanmar are working together to develop a permanent road link from Maungdaw township to the southernmost point of Maungdaw with the ultimate goal of a road link from Maungdaw to Sittwe. This important artery will accelerate the development of the area, creating new economic opportunities as well as providing immediate assistance in the form of training and cash for work as well as food for work (WFP) to the poorest villagers along the route. In undertaking construction activities, UNHCR and BAJ have ensured that all labour is appropriately compensated, including through food for work programmes.

Additionally, infrastructure activities have a direct effect. By building bridges and improving infrastructure in general, there is less demand for compulsory labour.

Community social services

It is estimated that up to 10 per cent of returnee population falls under the category of Extremely Vulnerable Individuals (EVIs). These are the female-headed households, widows, orphans, physically or mentally disabled or elderly. Some 7,213 EVIs have been identified and various agencies, including UNHCR, are actively targeting these groups for assistance recognizing that inadequate social services and opportunities for self-reliance exist. The ultimate goal is to identify and implement interventions that will help these individuals and their families attain self-sufficiency. Myanmar Red Cross Society (MRCS) is actively implementing training and assistance activities in this sector, as UNHCR's implementing partner.

Community Social Service helps EVIs who are not subject to compulsory labour any way to be self-reliant. It also encourages community participation including their obligation and responsibility to the community. In some instances, this transforms potentially "compulsory labour" into "voluntary community work". UNHCR encourages this trend as after all, villagers have to maintain what UNHCR built for the general development of the society.

On top of all the activities mentioned above which are interrelated, UNHCR is doing general advocacy, i.e. sensitizing the authorities not to impose compulsory labour. The important point is UNHCR has nothing to do with "abetting" the practice of compulsory labour, but on the contrary, it has been striving to reduce the frequency of forced labour and to promote payment for labour.

Conclusion

It is UNHCR's observation that, due in part to its advocacy efforts, there has been a decreasing trend in compulsory labour practices over the past years. There has been improvement to the situation in terms of the frequency of labour calls, the number of labourers required as well as the number of days of labour. There also appears to have been more attempts made to pay labourers for their work in money or in kind, although the amounts paid are usually far below market rate. Nonetheless, it is also observed that compulsory labour practices are continuing in areas where there is heavy military presence and where porterage is required by the military. UNHCR plans to maintain its presence and activities in the area to consolidate the progress made. Its humanitarian activities are intended to curtail practices such as forced labour.

21 December 2000.

Appendix 10

Note on UNDP's activities in Myanmar in the context of the ILO resolution

Background

Since 1993, United Nations Development Programme (UNDP) assistance to Myanmar has been provided under the framework of the UNDP Governing Council's decision 93/21 of June 1993 which stipulates that "assistance from the United Nations Development Programme and related funds to Myanmar should be clearly targeted towards programmes having grass-roots level impact in a sustainable manner, particularly in the areas of primary health care, the environment, HIV/AIDS, training and education, and food security". Consequently, a set of individual projects known as the Human Development Initiative, or HDI, has been implemented since 1994.

In January 1996 and again in July 1998, the above mandate 93/21 was reaffirmed by the successor body to the Governing Council, the UNDP Executive Board, in its decision No. 96/01 and No. 98/14 respectively.

The HDI has three overarching objectives:

-- helping communities to meet their basic humanitarian needs;

-- involving local people in planning and implementing activities that will benefit them; and

-- building local capacities for self-help activities.

While the UNDP Country office and the HDI projects and their executing agencies continually seek to improve and refine the HDI's outreach and benefits, the Governing Council and Executive Board decisions continue to provide the parameters within which all HDI activities are planned, implemented and evaluated.

Today, 11 projects work in an integrated manner with each other and with grass-roots communities to meet basic needs and alleviate poverty in 23 townships with over 10,000 community groups and organizations in the Dry Zone, the Ayeyarwaddy Delta, and the Shan, Chin, Kachin and Rakhine States in Myanmar. An exception is the HIV/AIDS project, which covers areas with high prevalence of HIV across the country. The HDI is now in its third phase, which will end in 2001.

Project specific analysis

Three of the 11 HDI projects focus on agriculture and food security. They aim at helping poor farmers and the landless improve their production and increase their incomes from forestry, agriculture, aquaculture and livestock. They are implemented by the Food and Agriculture Organization of the United Nations (FAO) in the Dry Zone, the Shan State and the Delta.

The primary health care project aims to help local people meet their own primary health care needs, and to improve their access to basic health services. It focuses on the major threats of malaria, leprosy, iodine deficiency and tuberculosis. It trains midwives and auxiliary workers, and promotes family planning. This project is executed by the United Nations Office for Project Services (UNOPS).

The community water supply and sanitation project builds water-supply systems for villages that lack a supply of clean water and that often have no water at all in the dry season. It also improves sanitation, for example by promoting simple pit-latrines, and helps people build small bridges and other facilities that they themselves identify. This project is managed by the United Nations Center for Human Settlements (UNCHS).

The HIV/AIDS project, implemented by UNOPS, educates people to avoid infection by the deadly AIDS virus, and how to care for people who have the disease. It targets groups at greatest risk of infection: commercial sex workers and their clients, transport and mineworkers, fisher-folk and refugees.

The primary education project aims to improve the access to and the quality of primary education, for example by building and renovating schools in deprived areas, loaning textbooks to the neediest children, and by training teachers. The project also works to bring literacy through non-formal education activities to children and adults who cannot attend regular school classes. This project is executed by the United Nations Educational, Scientific and Cultural Organization (UNESCO).

The micro-finance project loans small amounts of money to villagers to help them build small businesses. The implementation of this project is subcontracted to non-governmental organizations (NGOs): Private Agencies Collaborating Together (PACT) in the Dry Zones, Groupe de Recherche et d'Echanges Technologiques (GRET) in the Shan State, and Grameen Trust in the Delta. This project is managed by the United Nations Office for Project Services (UNOPS).

The remote townships project provides integrated community development services (encompassing social development, income generation and local capacity building in agriculture, health, education, water supplies and credit) in ten townships - in Rakhine, Kachin and Chin States. This project is executed by the United Nations Office for Project Services (UNOPS).

The HDI Support project provides operational and technical support for the HDI projects. It also undertakes key activities including social mobilization and integrated development planning and management.

Finally, a preparatory assistance project is laying the groundwork for a Basic Needs Assistance Programme in Northern Rakhine State.

HDI project activities and compulsory labour

HDI projects, both by design and practice, are neither physical inputs-driven nor construction-oriented. Conceptually, HDI relies more on "software" improvements than hardware improvement of the local rural communities at the grass-roots level.

The limited physical improvements supported by the projects (e.g. renovation and construction of rudimentary village basic health care centres, small water-supply systems such as water ponds, hand-dug wells, rain-water collection tanks, community learning centres and primary schools, village access roads and small bamboo/wooden bridges, farm level soil conservation bunds, gulley-plugs, community woodlot nurseries, etc.) are invariably small in size, limited in scope, demonstrative in purpose and focused directly at serving a specific community only. HDI projects support and facilitate these activities as strategic entry points to initiate social mobilization of the rural communities concerned.

Both in theory and practice, the HDI approach is basically antithema to compulsion. HDI is strictly based on voluntary participation. All HDI activities by design are planned, implemented, monitored, operated and maintained by the beneficiary communities themselves. If there are any inputs, willing and able to be contributed by the beneficiaries, the type, quantity and nature of these are proposed and decided by consensus of the concerned community. HDI thus inculcates a more sustainable community development approach based on voluntarism as an alternative to non-voluntary administrative method of implementing development activities.

Thus, if and when HDI projects assist activities which could involve some construction and earth work where labour inputs might be called upon, the nature of the labour contribution (amount, timing, mode of remuneration, etc.) must be proposed, discussed, agreed upon and monitored by the concerned communities themselves, all strictly on voluntary basis. HDI projects never force (and the projects have no authority to force) the communities to contribute any inputs (including labour) in any of its activities.

In response to the EB mandate, HDI was designed to implement its project activities through UN Executing Agencies and not through or with the government line departments. Government institutions concerned, from central to the village level, are informed of what HDI is doing. Decision-making authority, however, is strictly with the project management which is not shared with the Government. HDI projects are implemented through their own separate, independent channels managed by their own project staff, down to the community beneficiaries level and not through any existing government bureaucracy.

As required by the successive EB mandates, regular assessments by independent missions have been made on HDI performance. The EB in its decision 98/14 requested the Administrator, to continue to provide the Board, on an annual basis, with a report on the progress and challenges in the implementation of HDI project activities. In compliance with this request, the latest independent assessment and evaluation mission was fielded during the period 27 May through 15 July of 2000. After reviewing the extensive documentation on each of the 11 HDI projects and visiting selected project villages, including extensive consultation with village beneficiaries in these project areas, the mission concluded that "the content and objectives of all HDI projects were in full conformity with the relevant provisions of the Governing Board and Executive Council decisions".

Conclusion

In light of the above analysis we firmly believe that the ongoing HDI project activities (the only UNDP-funded programme in the country) do not and could not have the effect of directly or indirectly abetting the practice of forced or compulsory labour in Myanmar.

Appendix 11

International ICFTU/ICFTU-APRO/ITS Conference

The global unions' Plan of Action on Burma (adopted in Tokyo on 1 March 2001)

1. Strengthen material support to the FTUB.

2. Strengthen implementation of the ILO Burma resolution of June 2000, including:

-- review of your government's bilateral relations with junta;

-- support holding of special Burma session during the International Labour Conference, 2001;

-- support inclusion of this issues at the next session of the United Nations Economic, Social and Cultural Committee;

-- seek consultations on Burma measures with your government under the ILO Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144);

-- seek improved coordination of United Nations specialized agencies and programmes so that they do not in practice aid or abet forced labour.

3. Increase pressure on international financial institutions (IFTs) with the same purpose.

4. Lobby European Union presidency and Member States to further strengthen existing Burma sanctions, in cooperation with the ETUC.

5. Lobby ASEAN member States to help bring about an end to forced labour and the establishment of democracy.

6. Seek early discussions with companies maintaining business relations with Burma in order that they withdraw trade and investments in Burma, or alternatively face public exposure, union-driven consumer pressure and boycotts.

7. Expand and strengthen workers' shareholder action against companies trading with or operating in Burma.

8. Better inform rank-and-file membership, as well as the wider community, about the situation.

9. Organize an International Day of Union Action for Burma on 1 May 2001 and use the occasion, in cooperation with civic and religious group, NGOs and others to:

-- lobby governments;

-- pressure companies;

-- create public awareness;

-- target Burmese embassies;

-- link the Burma situation with the ILO Declaration on Fundamental Principles and Rights at Work.

10. Keep the Burma Plan of Action on union agendas and inform your membership of progress.

GB.280/6 (Add.1)

SIXTH ITEM ON THE AGENDA

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

Addendum

1. Since document GB.280/6 was finalized, the Office has received a number of additional communications from member States, national employers' and workers' organizations, an international organization, and a non-governmental organization. To enable the Governing Body to get as complete a picture as possible, these communications are summarized below.

2. The Government of Canada indicated that copies of the Conference resolution had been sent to Canadian provincial and territorial governments and to national workers' and employers' organizations. The Government had also sent a letter to major Canadian business associations informing them of the Conference resolution and Canadian policies with respect to Myanmar. In 1988 Canada suspended diplomatic and commercial relations with Myanmar, along with support for Canadian firms doing business in the country, including export programmes and commercial promotion. Support for multilateral assistance through international financial institutions was also withdrawn, and bilateral aid was suspended. In August 1997, the Canadian Government had announced selective economic measures against Myanmar, which remain in force. These include withdrawal of trade preferences and the introduction of export controls that effectively limit exports to those of a humanitarian nature. The Government also issued a statement urging the Canadian business community to refrain from entering into further investment agreements or commercial ventures in Myanmar until improvements were evident.

3. The Government of Japan communicated the following points via its Permanent Mission. The relationship between Japan and Myanmar did not contain any element that contributed directly or indirectly to forced labour in Myanmar, nor did any development assistance do so. Japan hoped that an early solution would be attained on the question of forced labour in Myanmar, and that a constructive dialogue towards that objective between the Government of Myanmar and the ILO would start soon.

4. The Government of New Zealand indicated that it had recently reviewed the country's bilateral relationship with Myanmar and no element of that relationship had been identified that would perpetuate or extend the system of forced labour in Myanmar. The Government intended to keep the relationship under review. It had forwarded copies of the Conference resolution to the New Zealand Council of Trade Unions and the New Zealand Employers' Federation.

5. The Government of Portugal indicated that its trade with Myanmar took place within the framework of the WTO and the EU. It was difficult within the framework of the WTO to take measures against another member State for violations of fundamental worker rights. The EU had suspended Myanmar from its system of trade preferences because of the forced labour situation. The EU continued to observe the situation in Myanmar with concern, and would discuss the question of forced labour in Myanmar and the Conference resolution at a meeting of the EU Council in March.

6. The Government of Belgium indicated that although its bilateral relations with Myanmar were extremely limited, it had invited ministers of departments having relations with the country to examine measures that could be taken in support of the ILO action and to prevent these relations being used to maintain the system of forced labour. The possibilities for economic sanctions were limited because bilateral trade was minor, and also because trade policy was mainly handled at the EU level. In July last year, the Government of Belgium had communicated to the president of an oil company its strong reservations regarding the policy followed by that company, which pursued its goals without taking account of the situation in Myanmar. For ethical reasons, the Government had ended a contract for the supply of fuel with the same company. It had also introduced an ethical clause preventing suppliers to the Belgian State from carrying out activities in countries that were guilty of certain human rights violations, although the introduction of this clause had yet to be approved by the European Commission. The Government gave its assurances that during its next term as president of the EU, later this year, the EU's position would be carefully examined in the light of the situation on the ground in Myanmar.

7. The Government of Kuwait stated that it had no direct or indirect cooperation with the Government of Myanmar, and indicated that it had communicated the Conference resolution to its employers' and workers' organizations. The Government of the Seychelles indicated that it was studying the situation and would revert in due course.

8. The Dutch trade union federation Federatie Nederlandse Vakbeweging (FNV) indicated that it had no relations with the regime in Myanmar. It had requested the Dutch Government to provide it with information on Dutch companies with trading interests in Myanmar, on the total value of trade between the two countries, as well as details of imports which may have been made with the use of forced labour. Further action would be taken on the basis of an analysis of this information, as soon as it is received. The federation had also requested the Dutch Government to develop concrete proposals for a review of its own and/or EU relations with Myanmar on the occasion of the next EU discussion round on these relations. It had asked the Dutch Government to inform it of such proposals, with whom it would discuss them if appropriate.

9. The Fiji Trades Union Congress indicated that it supported the ICFTU position, but did not have any further information to provide at this stage.

10. The All Pakistan Federation of Trade Unions indicated that it had urged the Government of Pakistan to implement the spirit of the Conference resolution, and had circulated the resolution widely to the news media in order to inform public opinion about the situation in Myanmar.

11. The Swedish Employers' Confederation indicated that the content and implications of the Conference resolution had been discussed at a meeting of the South-East Asia advisory board of the International Council of Swedish Industry. The Confederation's full membership of 45,000 companies had been informed via its newsletter of its support for the Conference resolution, and companies that had any commercial relations with Myanmar were asked to review these relations. The International Council of Swedish Industry had communicated the content of the Conference resolution to relevant associations of companies.

12. The United Nations Industrial Development Organization indicated that in reference to its activities in Myanmar it was not aware of any non-compliance with the Conference resolution.

13. The non-governmental organization Images Asia, which had provided a representative to testify before the Commission of Inquiry at its formal hearing of witnesses and which had cooperated closely with the Commission's visit to the region in 1998, transmitted a report dated 3 March 2001 on forced labour in the Rakhine state of Myanmar. The report referred to the situation in northern Rakhine state in December 2000. The report indicated that orders to stop the use of forced labour had been transmitted by the Government of Myanmar to the civilian authorities in the state, and village leaders had been requested to organize mass public meetings to announce the change in policy. Such information had also been placed on official notice boards, and it had been declared that neither civilian nor military authorities were entitled to demand compulsory labour, and that in case of non-compliance complaints should be filed with the Court, which would take appropriate action. The report claimed, however, that the Myanmar military, especially local battalions, were showing no willingness to implement these instructions. The military was continuing to requisition labour under threat of "dire consequences". As a result, while there had been a temporary reduction in labour demands in some areas, this was only slight, and there were allegations that it had been accompanied by an increase in extortion and arbitrary taxation.

Geneva, 22 March 2001.

GB.280/6 (Add.2)

SIXTH ITEM ON THE AGENDA

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

Addendum 2

Measures taken by the Organization's constituents

Measures taken by member States

1. In a letter dated 14 March 2001, the Government of Mexico stated that bilateral trade and political dialogue with the Government of Myanmar were minimal and that there were no bilateral mechanisms, legal instruments or cooperation projects under way or in the process of being negotiated between Mexico and Myanmar. The Government had communicated the recommendations contained in the Conference resolution to the country's most representative employers' and workers' organizations. Of these, the Confederation of Workers of Mexico had begun trade union action on this matter through its representative in the ILO Governing Body.

Geneva, 27 March 2001.

GB.280/PV

D. Provisional minutes of the discussion of this item

(Subject to approval by the Governing Body at its 282nd (November 2001) Session.)

Governing Body

Provisional minutes of the 280th Session

()

SECONG SITTING

Extract

Wednesday, 28 March 2001, morning

The sitting opened at 10.50 a.m., with Mr. Amorim in the Chair.

Sixth item on the agenda

DEVELOPMENTS CONCERNING THE QUESTION OF THE OBSERVANCE BY THE GOVERNMENT OF MYANMAR OF THE FORCED LABOUR CONVENTION, 1930 (NO. 29)

The Chairperson recalled that, at its 279th Session (November 2000), the Governing Body had concluded that the conditions set out in paragraph 2 of the Conference resolution of June 2000 concerning the Government of Myanmar's observance of Convention No. 29 had not been fulfilled and consequently the provisions of paragraph 1 of that resolution would come into effect on 30 November 2000. At the same time, it had decided that the channels of cooperation between the ILO and the Government of Myanmar should be kept open. The Director-General had subsequently taken the necessary steps to set these provisions in motion.

The Governing Body now had before it a report presenting the latest developments in this case as regards the Government of Myanmar, as well as measures taken by the ILO's constituents and by various international organizations. This document included 11 appendices setting out detailed elements and was accompanied by two additional papers which contained further information received since then from governments and employers' and workers' organizations.

In paragraph 67 of the main paper, the Governing Body was invited to request the Director-General to transmit the paper to the Conference Committee on the Application of Standards, which would consider this item in June 2001, together with the record of the Governing Body's own discussions and any other pertinent information.

The Director-General observed that the replies received from the ILO's constituents demonstrated that the request contained in the Conference resolution had led several governments to review very thoroughly their relations with Myanmar in consultation with employers' and workers' organizations, and in some cases this review had paid special attention to the situation of companies operating in Myanmar. However, while some governments had reported concrete measures and several trade unions had pressed for boycotts, the response to the Conference resolution generally reflected a wait-and-see attitude.

In accordance with the conclusions reached by the Governing Body in November 2000 and in line with the mandate conferred by the Conference, the Office had been authorized to extend its cooperation to the Government of Myanmar in order to promote the full implementation by the latter of the Commission of Inquiry's recommendations. In line with that mandate and despite the position of non-cooperation expressed by the Ministry of Foreign Affairs of Myanmar, the speaker had written to the Minister of Labour on 22 December 2000. While the Minister's reply of 11 February 2001 had generally confirmed an attitude of non-cooperation, it had at the same time emphasized action taken to enforce the legislative, executive and administrative measures announced, including action against perpetrators of violations. In his letter of 1 March 2001, the speaker had pointed out that Myanmar could not expect any acknowledgement for these actions unless there was an objective assessment of their practical implementation and actual input which the ILO was alone in a position to provide. Following this letter, the Deputy Foreign Minister of Myanmar had requested a meeting with the Director-General.

On the clear understanding that this meeting was intended as a positive response to his letter of March, the speaker had received the Deputy Foreign Minister on 22 March and a very frank and direct discussion had ensued. His own objective had been to ascertain whether the Myanmar Government was prepared to have an objective assessment made by the ILO of the concrete impact that the measures announced had had on the actual situation of forced labour in the country. Regarding the actual modalities, he had stressed that they would have to be of such a nature as to guarantee the objectivity and relevance of the outcome. He had likewise emphasized the urgency of the matter in view of the discussions due to take place at the Conference in June 2001. On that basis, the Deputy Minister's visit had confirmed the authorities' willingness to engage in early discussions for an objective assessment of the various measures adopted by the authorities at the end of 2000.

The ultimate significance of this exchange would depend on whether, and how soon, agreement was reached on the modalities of the objective assessment and this would show whether one was moving in a positive direction or towards an impasse. He intended to keep the Officers of the Governing Body closely associated with the progress of those discussions or their termination, as the case might be.

Mr. Brett (Worker, United Kingdom; Worker Vice-Chairperson) thanked the Director-General for his full report. However, the wait-and-see attitude among the ILO's constituents should, as far as the Workers were concerned, more aptly be described as a mood of expectancy. The Workers expected that the unprecedented recourse to article 33 of the ILO Constitution would have induced the Burmese authorities to see the logic of cooperating with the ILO in the fulfilment of their obligations. Their second expectation was that, if the Burmese Government failed to do so, the international community would take appropriate action to bring about compliance. It had been made very clear at the time that article 33 was not a provision to be invoked lightly, nor was this an attempt to put in the dock a government which had persistently refused to comply with its obligations under Convention No. 29, but it was a serious indictment of a government which had failed to comply with its obligations over a long period of time. After a policy of consistent denial that any forced labour existed in Burma, the Minister of Labour's letter of 21 February 2001 in fact amounted to an admission that forced labour had existed and continued to be practised in the country. While the Government now admitted to a few isolated cases of breaches of the legislation and stated that action had been taken against perpetrators of such violations, it had supplied no precise information in this respect. Reports from NGOs and the international trade union indicated, on the contrary, that widespread use of forced labour continued in Burma. Against this background, it was highly disappointing that the Minister of Labour had brushed aside the offer of ILO assistance on the pretext that the Government was perfectly capable of taking he necessary measures without outside assistance. On the contrary, it was essential, in the interests both of the ILO and the Government of Burma, that any measures taken to eradicate forced labour be duly verified by an impartial outside body. Until this occurred, there was no way of ascertaining what progress, if any, was achieved towards this goal. The Director-General's statement in his letter of 1 March that the ILO alone was in a position to provide such an assessment "with the authority necessary to carry legal, practical and political consequences at the international level" constituted very sound advice which the Government of Burma should heed carefully.

As regards opinion within Burma, paragraphs 48 and 49 of the paper made reference to an "open letter regarding ILO decision on Myanmar in Myanmar" purported to emanate from 18 million workers employed by public and private enterprises and an open letter bearing the same title and date from the "International Business Community". These communications not only stretched the bounds of credibility, but also suggested a high degree of coercion in obtaining those signatures.

It was also disappointing that a number of member States had been extremely vague in their replies as to the efforts they might envisage. He stressed that the Conference resolution called upon member States to take appropriate action to ensure that the Burmese authorities did not take advantage of their relations with other States to perpetuate or extend the system of forced labour. No doubt some of this wait-and-see policy had been influenced by reports that the Burmese military junta had recently engaged in secret talks with the democratic opposition leader. However desirable a return to democracy might be, this was not the issue now before the Governing Body, which was a very simple one, i.e. to bring about an end to forced labour, which was a violation of a basic ILO Convention.

A number of trade unions had responded in a very concrete manner. In particular, the ICFTU - which represented some 200 million workers throughout the world - had at a meeting in Tokyo adopted a global plan of action on Burma which set out a number of concrete steps aimed at persuading governments, business circles and international bodies to take action steps towards the cessation of forced labour in Burma. In this connection, it was disappointing that the United Nations and other international organizations had not applied themselves seriously to this situation and had merely taken note of the ILO's communication. It was also not acceptable that governments which in the ILO had supported the enforcement of measures under article 33 failed to speak up on this issue in other international bodies. The Workers supported the Director-General's proposal to place the question on the agenda of ECOSOC at its July 2001 meeting. It was to be hoped that all this would help to create a climate in which the Government of Burma would see the need to act and to restore some measure of credibility by involving the ILO in validating the process. The Workers would in any case pursue their campaign until the Government of Burma complied with its obligations.

Mr. Thüsing (Employer, Germany; Employer Vice-Chairperson) considered that it would not be helpful to exacerbate the situation further by exaggerated statements or gestures. The Conference had decided in June 2000 that certain measures should be implemented in pursuance of article 33 of the ILO Constitution and in November 2000 the Governing Body had not been able to conclude that anything had occurred in the meanwhile that would warrant not implementing these measures. The Employers believed that this decision, while unfortunate, had been the right one in the circumstances. An existing situation could only change if new elements came into play, and in this case a new element could only arise when, on the basis of an objective assessment carried out by the Office, the Conference or Governing Body received a report that would enable them to conclude that the situation had changed in a positive direction. It was therefore necessary to wait for such a positive development and all parties concerned should work together with good will to achieve this objective.

Ms. Adler (Government, Denmark) took the floor on behalf of the governments of the European Union (EU), as well as the governments of Central and Eastern Europe associated with the EU. The associated countries Cyprus, Malta and Turkey as well as Croatia and Norway had also expressed the wish to align themselves with this statement.

The European Union had supported the ILC resolution adopted in June 2000 and had welcomed the entry into force of the measures recommended by that resolution on 30 November 2000 because it felt deep concern about the situation of forced labour in Burma, as reflected in the replies sent by EU Member States and the European Commission to the Director-General's letter of 22 December 2000.

In 1997 the ILO Commission of Inquiry had made clear recommendations to the Government of Burma, to the effect that: the national legislation be brought into line with ILO Convention No. 29; that no more forced or compulsory labour be imposed by the authorities in practice; and that persons who imposed forced labour should face penal sanctions. These recommendations were still valid and Burma needed to comply fully with them.

In November 2000, the Government of Burma had started to take some measures addressing the problem and had in particular adopted certain legislative measures, according to the ILO mission report. However, as regards implementation measures and their follow-up, developments were much less evident. The EU was concerned about continued reports of the use of forced labour in Burma.

Burma had since informed the Office that it would continue its own efforts towards the elimination of forced labour - which was in itself encouraging - but without ILO cooperation - which was regrettable. In order for the ILC to lift the measures it had decided on, it needed to be assured that forced labour was eliminated completely in Burma, and only the ILO could provide such information. The European Union therefore urged Burma to resume its cooperation with the ILO and to allow a full-time ILO presence in the country in order to assist the Government to put a definitive and verifiable end to the practice of forced labour. If Burma did make sufficient progress by the time of the ILO Conference in June 2001, Members might wish to consider what further steps might be taken.

Mr. Spring (Government, United States) noted that, in his letter of 22 December 2000, the Director-General had reiterated the ILO's readiness to help the Government of Burma implement the recommendations of the Commission of Inquiry. This was in keeping with the terms of the June 2000 Conference resolution and the discussion of the resolution by the Governing Body in November 2000. While it was disappointing that the Government of Burma had not accepted the ILO's offer of assistance, that offer still stood.

In his letter of 1 March 2001, the Director-General had stated that the ILO alone was in a position to provide an objective and authoritative assessment of the Government's implementation of the Commission of Inquiry's recommendations. While agreeing with that statement, the speaker cautioned that, in the absence of democratic reforms in Burma, the practical ability of an ILO presence there to assure that forced labour had been eliminated nationwide was problematic. Under these circumstances, such a presence might erode, rather that enhance, the credibility of the ILO.

The Office paper provided discouraging evidence that the practice of forced labour continued in Burma. Government and military officials at all levels were reported to have taken measures to conceal the practice, and to weaken or nullify the effects of the orders that the Government had submitted to the Governing Body in November 2000 as evidence of its determination to eliminate forced labour. Moreover, a campaign of propaganda and disinformation had been launched to try to counter the measures foreseen by the Conference resolution. Tens of thousands of people, including women, children and elderly persons, were reported to have been pressed into forced labour in the short period of time since November 2000. He fully endorsed the proposal in paragraph 67 that the Director-General transmit this document to the Conference for discussion in June 2001.

In January 2001, the international community had generally welcomed the announcement of the opening of dialogue between the Government of Burma and the democratic opposition. More than two months later, it was still waiting for signs that this represented a genuine effort at achieving national reconciliation and at making concrete progress towards ending human rights abuses. Forced labour was unlikely to end in Burma as long as democratic government was denied. The United States Government was in favour of giving this dialogue a chance to succeed. However, if no genuine progress was achieved, it was prepared to consider additional measures to respond to the Conference decision.

Mr. Haraguchi (Government, Japan) observed that, according to the ILO mission report submitted to the Governing Body in November 2000, the Government of Myanmar had unquestionably taken various legislative and administrative measures towards the eradication of forced labour. While it still remained to be seen how these measures would be implemented, it should be recognized that some progress had been made, and the Government of Myanmar should be given every encouragement to move forward rapidly in the desired direction. The speaker continued to believe that this was the valid approach in order to bring about the desired results in a smooth manner.

He commended the Office for its efforts to re-establish dialogue and cooperation with the Government of Myanmar. For its part, the Government of Japan had been in touch with the Government of Myanmar at various levels, both formally and informally, to impress upon the latter the need to cooperate with the ILO, and in particular to involve the ILO in the objective assessment of the measures introduced. His own Government would continue its efforts, and it hoped that it would be possible for all concerned to work together resolutely so that those efforts would be fully rewarded as early as possible.

Mr. Chung (Government, Republic of Korea) reported that his Government had transmitted the Conference resolution to the major employers' and workers' organizations in the Republic of Korea and had requested them to take appropriate measures to implement the recommendations and review their relations with Myanmar, if necessary. His Government would inform the ILO of any further developments in this connection. It hoped that an early solution to the problem would be obtained through a combination of technical assistance from the international community, including the ILO, and more active efforts on the part of the Government of Myanmar.

Mr. Mladlana (Government, South Africa) expressed appreciation for the manner in which the ILO's constituents had reacted to the decisions adopted by the Governing Body and expressed solidarity with the workers of Myanmar in their struggle against forced labour. His Government firmly supported the maintenance of these measures as long as Myanmar remained intransigent and unwilling to desist from the despicable behaviour which had prompted those measures. In the context of justice and respect for human rights, workers' rights should be upheld as an integral part of human rights. He called upon the ILO to sustain the measures imposed upon the Government of Myanmar while at the same time intensifying its efforts aimed at assisting that Government to adopt a course of action that would result in upholding the fundamental principles of natural justice.

Mr. Rimkunas (Government, Lithuania) fully endorsed the statement made on behalf of the governments of the European Union. At the same time, he welcomed the efforts undertaken by the Government of Myanmar to eliminate forced labour, which should be pursued in close cooperation with the ILO.

Mr. Hendrasmoro (Government, Indonesia) emphasized that his Government did not condone any practices in Myanmar that abetted or encouraged the practice of forced labour as described by the ILO's Commission of Inquiry. However, it also firmly believed that promotional measures and cooperation were far more preferable to sanctions in addressing this issue. Indeed, punitive measures had repeatedly proved ineffective in securing the observance of any ILO Convention or Recommendation and merely created divisions and conflicts within the Organization.

He therefore welcomed the fact that the channels of communication between the Director-General and the Government of Myanmar had been kept open. These exchanges denoted that the ILO and the Government of Myanmar both understood the importance of maintaining opportunities for dialogue and cooperation in addressing this problem. He commended the Director-General for his readiness to cooperate with the Government of Myanmar for the purposes of ensuring the implementation of the recommendations of the Commission of Inquiry.

The Government of Indonesia was encouraged by the assurances given by the Government of Myanmar that it would continue its efforts to eradicate forced labour and enact legislation making this practice illegal. He believed that if the framework of measures put in place by that Government were implemented, there would be a marked improvement in Myanmar's record on the issue of forced labour.

Mr. Vaish (Government, India) stressed that his Government had always been strongly opposed to the practice of forced labour and believed that countries voluntarily adhering to ILO Conventions should apply them. At the same time, it had consistently emphasized that the ILO's objectives could best be promoted through dialogue and technical cooperation and not through punitive measures or threat of their use. It had therefore advocated constructive dialogue and technical assistance between the ILO and the Government of Myanmar. Strongly believing in the virtues of dialogue and persuasion, the Government of India commended the Director-General for the recommencement of dialogue with the Government of Myanmar and wished him every success in these efforts.

The speaker noted from paragraph 4 of the Office paper that informed 59 international organizations, including the IMF, the World Bank and the WTO, regarding the issue under consideration. It was his own understanding that this communication should have been sent only to those organizations with which the ILO had established relations under article 12(1) of the Constitution and with the approval of the Governing Body. He therefore requested the Office to explain the criteria used for selecting the organizations to which this information had been circulated. It was important that these criteria be entirely clear so that there could be no scope for any controversy or confusion on this point in the future.

The representative of the Director-General (Mr. Tapiola, Deputy Director-General) pointed out that article 12(1) of the Constitution, which provided that the ILO "shall cooperate within the terms of this Constitution with ... public international organizations having specialized responsibilities in related fields", did not limit such cooperation to organizations with which the ILO had concluded specific agreements. In the present case, the information had been sent to all the international organizations invited to the International Labour Conference and the ILO's regional conferences and meetings.

The Chairperson observed that the only action which the Governing Body was now called upon to take was to request the Director-General to transmit the Office report to the Conference Committee on the Application of Standards, as proposed in paragraph 67. No disagreement with that proposal had been expressed by anybody. During the debate, a good deal of emphasis had been placed in the question of assessment and verification and he encouraged the Director-General to pursue that line. This would probably be one of the crucial aspects to be examined at the Conference.

Mr. Brett (Worker, United Kingdom; Worker Vice-Chairperson) assumed that the report that would be transmitted to the Conference would be an updated version of the document taking into account any further developments taking place between now and the opening of the Conference.

The Workers had noted from the replies of some governments that the latter had merely transmitted the Director-General's communication to the national employers' and workers' organizations, expecting them to take the necessary action. This appeared to reflect a basic misunderstanding on their part. While it was of course desirable for the social partners to be involved in any collective or individual action taken on this issue, the Conference resolution placed the primary responsibility on governments for reviewing their relations with Myanmar and taking concrete measures. He would therefore welcome hearing from the governments concerned that they were themselves taking action and not merely presuming that action would be taken only by the employers' and workers' organizations.

The Governing Body took note of the report and addenda 1 and 2. It requested the Director-General to transmit to the Conference Committee on the Application of Standards the report together with the record of its consideration, as well as any further information of relevance for its discussion. The Conference Committee would have before it the report of the CEACR together with any other relevant information.

C. App./D.7

E. Developments since the 280th Session of the Governing Body (March 2001): Arrangements for an objective assessment of the situation of forced labour following measures taken by the Myanmar Government

(Mission to Yangon, 17-19 May 2001)

Introduction

While considering that the conditions had not been met for the provisions contained in the Conference resolution of June 2000 to be rendered inappropriate, the Governing Body noted during its 279th Session in November 2000 that the Director-General should continue to extend cooperation to the Government of Myanmar in order to promote full implementation of the recommendations of the Commission of Inquiry.

During its 280th Session in March 2001, the Director-General informed the Governing Body, in opening the discussion on the report concerning the implementation of the measures decided by the Conference (GB.280/6), of the efforts which he had undertaken with the Myanmar authorities in order to fulfil the second aspect of his responsibilities. In his letter of 1 March 2001 to the Minister for Labour (Appendix 1), he had expressed the view that the Myanmar authorities could not expect to receive any recognition for the framework of measures and subsequent action which they said they had taken, in the absence of an objective assessment by the ILO of their practical implementation and actual impact on the forced labour situation. Following that letter, he had received a visit from the Deputy Minister for Foreign Affairs, Mr. Khin Maung Win, on 22 March 2001. During a very frank discussion, the Deputy Minister had indicated that the authorities were disposed to enter quickly into discussions on the modalities of an objective assessment.

That information was received with interest, and the Governing Body decided that any further developments should be reflected in the report to be submitted to the Conference Committee on the Application of Standards at its meeting in 2001, in accordance with paragraph 1(a) of the resolution adopted in June 2000. The present report follows up that decision. Its purpose is to set out the developments that have taken place since the Governing Body's last session, and in particular to give an account of the origin and results of the mission which visited Yangon between 17 and 19 May 2001 in order to decide on the modalities for an objective assessment of the implementation and impact of the framework of measures put in place from October 2000 onwards.

Origin of the mission

During a meeting with the Director-General on 22 March 2001, Mr. Khin Maung Win had said that the Permanent Representative of Myanmar in Geneva, Ambassador U Mya Than, would be appointed to undertake discussions with the Office regarding the modalities of the objective assessment. During those preliminary discussions, it soon became clear that it was not realistic to expect the two successive stages of the implementation process (agreement on modalities and, in the case of such agreement being reached, the carrying out of the assessment itself) could be undertaken before the Conference, given the logistical constraints and the deadlines associated with the second stage. The parties therefore set a target of reaching a clear and firm commitment from the authorities regarding the modalities of such an assessment before the International Labour Conference, on the understanding that such a commitment would be followed up as soon as possible by the assessment itself, so that the Governing Body could be informed of the results during its November 2001 session. The letter of the Minister for Labour dated 26 April 2001 (Appendix 2) and the Director-General's reply of 10 May 2001 (Appendix 3) are the two principal reference points in the development of discussions on that subject.

It followed from the Director-General's letter of 10 May that, in order to finalize the modalities in question and obtain before the Conference a specific and definitive commitment based on parameters previously discussed with the Ambassador (concerning issues such as who would carry out the assessment, when it would begin and how long it would last, and what practical and legal guarantees would be provided for it), discussions would have to be held in Yangon with all the ministries concerned.

It was for this reason that a new mission visited Yangon between 17 and 19 May 2001. Its members were as follows:

-- Mr. Francis Maupain, representative of the Director-General;

-- Mr. Dominick Devlin, Legal Adviser;

-- Mr. Rueben Dudley, Deputy Director, ILO Regional Office for Asia and the Pacific;

-- Mr. Richard Horsey, Secretary.

Progress and findings of the mission

The mission, like the previous ones, attracted a degree of interest among the diplomatic community in Yangon and among the United Nations agencies. In order to respond to that interest, and despite the limited time available, the mission was anxious to organize a number of information sessions, with the assistance of the United Nations Resident Coordinator. The mission's detailed programme is given in Appendix 4.

During the first working session following the mission's arrival in Yangon, the representatives of the various ministries concerned informed the mission that they had taken a number of measures since the adoption of the new framework of legislative, executive and administrative measures. To illustrate those efforts, the Secretary of the "Implementation Committee for Convention No. 29", U Soe Nyunt, drew attention to action which had been taken to publicize those measures as well as to the visits that had been organized to different parts of the country in order to examine the realities of the situation in the light of previous allegations.

The mission emphasized that the purpose of its present visit was quite different from that of the previous missions. The purpose was not to re-examine the substantive issues dealt with in the report of the Commission of Inquiry. Neither was it the purpose of the visit to set up a new Commission of Inquiry, although the Government was free to request such a step under article 34 of the ILO Constitution. As the Director-General had made clear in his letter of 1 March and in his presentation to the Governing Body in March, the purpose of the objective assessment now being considered was more specific: it was to assess the practical implementation of the legislative, executive and administrative framework that had been put in place and its actual impact on the forced labour situation in the country.

The mission drew attention to the fact that the Committee of Experts on the Application of Conventions and Recommendations had discussed the framework of measures at its previous meeting in December 2000, and its observation in its report to the Conference provided some valuable indications as to the points to be considered when the objective assessment was undertaken. The Committee of Experts, while expressing regret that the views of the October 2000 Technical Cooperation Mission had not been fully taken into account, nevertheless noted that the legislative measures adopted "could provide a statutory basis for ensuring compliance with the Convention in practice, if given effect bona fide not only by the local authorities empowered to requisition labour under the Village and Towns Acts, but also by civilian and military officers entitled to call on the assistance of local authorities under the Acts". With that in mind, the Committee had given a number of indications regarding further measures that could be undertaken (Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), 2001, page 149).

The object and scope of the assessment being thus delineated, the mission emphasized that the modalities were of necessity dictated by the nature of the task: they had to provide every possible guarantee that the assessment would be objective and credible. The members of the High-Level Team (HLT) responsible for the assessment would therefore have to be appointed by the Director-General solely on the basis of their recognized impartiality, experience and technical competence including knowledge of the region; the duration of the HLT's visit should be sufficient to allow it to form an opinion, while recognizing the possible constraints as regards the availability of the HLT's members; and finally, the HLT needed to be allowed complete discretion with regard to the organization of its programme of activities and meetings. The mission expressed the hope that those parameters could be translated into a specific text during the course of the visit.

Those basic considerations led to discussions during which the mission drew up an initial draft "Understanding". That in turn gave rise to numerous proposed amendments and counter amendments until quite late in the afternoon of Saturday, 19 May. Two main difficulties had to be faced. The first concerned the appointment by the Director-General of the members of the HLT, which the authorities wished to be subject to their prior approval. That demand was not accepted. It was, however, made clear that the expression "recognized qualifications" used in point I of the text implied that the qualifications required of members of the HLT would have to be recognized by all, including the Myanmar authorities; that interpretation was subsequently confirmed in writing, at the latter's request. The second difficulty related to the discretion of the HLT to determine the programme which it regarded as necessary for conducting the assessment. The solution that was adopted acknowledged that that discretion could be limited by considerations of security - including the security of members of the HLT itself - but stipulated that those considerations must be "valid"; it also provided for a mechanism to overcome any difficulties that might arise in that regard, namely, the possible assistance of an independent "facilitator" recognized as knowledgeable and fair by all parties concerned. On that basis, the full text of an "Understanding" was finally agreed.

Before leaving Yangon, the mission was received by the Deputy Minister for Foreign Affairs, Mr. Khin Maung Win, who had been kept regularly informed of the progress of the discussions and who welcomed the news that they had finally led to an "Understanding". He expressed the willingness of the Government to make the assessment process a success and asked the mission to communicate to the Director-General his Government's wish to assist the HLT as much as possible in achieving its objectives. If difficulties arose, they could be discussed openly. The Government was firmly committed to resolving the issue.

The final text, as initialled by both parties at the airport after final amendments, is reproduced in Appendix 5. Before leaving, the representative of the Director-General expressed the concern that the content of the Understanding and its implications should be communicated to the General Secretary of the National League for Democracy (NLD). Since it had been unable to do so directly, given the various constraints which it had had to face, the mission, on behalf of the Director-General, asked Mr. Léon de Riedmatten, former ICRC delegate and currently representative of the Centre for Humanitarian Dialogue, to do so instead.

The mission could not conclude its report without thanking Mr. Patrice Coeur-Bizot, the United Nations Resident Coordinator, and his assistant, Ms. Jeanne Lennkh, for their valuable support in the organization of meetings and in ensuring the smooth progress of the mission. It also wishes to thank Mr. Léon de Riedmatten for the very useful advice which he imparted to the mission on the basis of his particular experience and role. The mission was encouraged by the contacts which it had with the international organizations represented in Yangon and with the current ICRC delegate, Mr. Michel Ducraux. Overall, those organizations expressed a strong interest in contributing in a concrete way to the success of the present undertaking and in particular to promoting the development and implementation of the programme of the future high-level team as far as their knowledge and resources permit.

Geneva, 31 May 2001.

Appendix 1

Communication dated 1 March 2001 from the Director-General to the Minister for Labour of the Government of Myanmar

Dear Mr. Minister,

I acknowledge receipt of your letter dated 11 February 2001 in reply to mine of 22 December 2000, and would like to offer the following comments.

As regards the second paragraph of your letter, I can assure you that your views, as well as the text of the statement which your Ambassador intended to make and which reached the Chairman's Office after the closure of the session, will be reflected appropriately in the documentation before the next session of the Governing Body.

I have taken note of your statement that Myanmar is "resolute in our endeavours to implement the framework of legislative, executive and administrative measures which we have put in place" with a view to the total elimination of the practice of forced labour in Myanmar, and in particular of the information that some action has already been taken against the perpetrators of such practices.

However it is clear that Myanmar cannot expect to receive credit for these endeavours in the absence of an objective assessment of their practical implementation and actual impact. The ILO alone is in a position to provide such an assessment with the authority necessary to carry legal, practical and political consequences at the international level. This is all the more relevant in the light of the continuing flow of information from various sources concerning the issues in question.

For these reasons I would like to reiterate that the Office stands ready to engage in discussions about the possible format and modalities such an objective assessment could take. In my view, it would be highly desirable that such discussions take place before the next session of the Governing Body. It should be recalled that the International Labour Conference will, in accordance with paragraph 1(a) of its resolution, review the situation at its next session in June, on the basis of all relevant information then available.

Yours sincerely,

(Signed) Juan Somavia.

Appendix 2

Communication dated 26 April 2001 from the Minister for Labour of the Government of Myanmar to the Director-General

Excellency,

I acknowledge receipt of your letter dated 1 March 2001 which responded to my letter of 11 February 2001.

I note with satisfaction that, as assured by you in the letter under reference, the statement of my Ambassador as well as our views on the issue of forced labour in Myanmar had been reflected in the documentation submitted to the 280th Session of the Governing Body of the ILO held last month. I wish to express thanks to you for that.

I fully appreciate your Office's continued readiness to engage in discussions about the possible format or modalities for an objective assessment of the actual implementation of the legislative, executive and administrative measures that we have taken to eliminate forced labour in Myanmar. In this regard I would like to reiterate Myanmar's willingness to occasionally accept an ILO representative based in the Regional Office in Bangkok or Geneva and/or a mutually acceptable person. We are convinced that such a representative would be able to assess objectively the implementation of the abovementioned measures and their impact. For the assessment to be generally effective, in our view, it would require the involvement of an independent and unbiased entity.

I hope that continued discussions between you and our Permanent Representative Ambassador U Mya Than, who has been designated as our contact point in this matter, will lead to some significant progress before the 89th Session of the International Labour Conference (ILC) in our search for the effective format or modalities acceptable to both sides.

I can assure you that, regardless of any outcome in this joint effort, we will continue to take steps to ensure that forced labour does not exist in Myanmar both in law and in practice and to implement the framework we have put in place.

Yours sincerely,

(Signed) Major-General Tin Ngwe,

Minister for Labour,

Union of Myanmar.

Appendix 3

Communication dated 10 May 2001 from the Director-General to the Minister for Labour of the Government of Myanmar

Dear Mr. Minister,

Thank you for your letter of 26 April reacting to my letter of 1 March in the light of subsequent developments, including the discussions at the 280th Session of the Governing Body.

As envisaged in your letter, discussions have in the meantime continued with Ambassador Mya Than with a view to clarifying the process whereby the objective assessment mentioned in my letter could actually take place.

It now seems clear on both sides that this process would be in two stages. The first stage would be to reach a clear and firm commitment on the modalities of such an assessment on the basis of parameters which have been presented to the Ambassador. It is very urgent that this commitment be finalized so that, as envisaged on both sides, the outcome could be reported to the Conference in June. To reach this outcome as expeditiously as possible, my representatives - whose names have been communicated to the Ambassador - are ready to travel to Yangon as soon as the competent authorities confirm their interest, but no later than early next week.

If this first stage is successful, the second stage would be to undergo the objective assessment itself, in accordance with the abovementioned modalities. This assessment would have to take place not later than the end of the summer so that a report could be prepared for the Governing Body in November.

I hope the above clarification may help the authorities to quickly finalize their position on the matter.

Yours sincerely,

(Signed) Juan Somavia.

Appendix 4

List of meetings held

The mission held 16 meetings in Yangon over three days. It met with the Deputy Minister for Foreign Affairs, senior officials from three ministries (Foreign Affairs, Home Affairs, and Labour), and from the Attorney-General's Office and the Office of Strategic Studies, representatives of 26 diplomatic missions, seven United Nations agencies, a representative of the Geneva-based Centre for Humanitarian Dialogue, and a representative of the ICRC.

Thursday, 17 May 2001

9.40 a.m., Arrival in Yangon

10.30-11.00 a.m., Traders Hotel

Patrice Coeur-Bizot United Nations Resident Coordinator

Jeanne Lennkh Assistant to United Nations Resident

Coordinator

Léon de Riedmatten Centre for Humanitarian Dialogue

11.00 a.m.-1.00 p.m., Traders Hotel

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Lt.-Col. Hla Min Deputy Head, Department of International

Affairs, Office of Strategic Studies

Aung Thein Director-General, Department of General

Administration, Ministry of Home Affairs

Zaw Win Chief of General Staff, Police Force

2.30-4.30 p.m., Traders Hotel

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Lt.-Col. Hla Min Deputy Head, Department of International

Affairs, Office of Strategic Studies

Aung Thein Director-General, Department of General

Administration, Ministry of Home Affairs

Zaw Win Chief of General Staff, Police Force

5.00-6.00 p.m., Japanese Embassy

Shigeru Tsumori Japanese Ambassador

Kiyoshi Koinuma Deputy Chief of Mission

Head of Political Section

Naoki Ito Counsellor

Friday, 18 May 2001

8.00-9.00 a.m., Traders Hotel

Trevor Wilson Australian Ambassador

John Jenkins British Ambassador

Bernard Lelarge French Second Secretary

Hauke Kracht German Third Secretary

Francesco Fedeli Italian Chargé d'Affaires a.i.

Karl Wycoff United States Chargé d'Affaires a.i.

Patrice Coeur-Bizot United Nations Resident Coordinator

Jeanne Lennkh Assistant to United Nations Resident

Coordinator

10.00-10.30 a.m., Traders Hotel

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Lt.-Col. Hla Min Deputy Head, Department of International

Affairs, Office of Strategic Studies

Aung Thein Director-General, Department of General

Administration, Ministry of Home Affairs

Zaw Win Chief of General Staff, Police Force

12.15-1.15 p.m., UNDP Office

Patrice Coeur-Bizot United Nations Resident Coordinator

Jeanne Lennkh Assistant to United Nations Resident

Coordinator

Members of the United Nations Country Team:

Francis Rinville FAO Representative

Guillaume Le Hegarat UNDCP Assistant Representative

Rajiv Kapur UNHCR Chief of Mission

Dr. Rosella Morelli UNICEF Officer in Charge

Jos Vandelear WHO Officer in Charge

Bradley Guerrant WFP Emergency Coordinator

Renata Dessallien UNDP Deputy Resident Representative

P 1.15-2.15 p.m., UNDP Office

Janeh Sukaimi Brunei First Secretary

In May Cambodian Counsellor

Nasaruddin

Mochtar Koro Indonesian Ambassador

Ly Bounkham Lao People's Democratic Republic Ambassador

Dato Mohammad

Bin Noh Malaysian Ambassador

Pablito Mendoza Philippine Third Secretary

Simon de Cruz Singapore Ambassador

Buskorn Prugsapongse Thai Counsellor

Nguyen Van Thanh Vietnamese Second Secretary

Wang Zongying Chinese First Secretary

Shyam Saran Indian Ambassador

Naoki Ito Japanese Counsellor

Chung Jung-Gum Republic of Korea Ambassador

Patrice Coeur-Bizot United Nations Resident Coordinator

2.30-4.00 p.m., Traders Hotel

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Lt.-Col. Hla Min Deputy Head, Department of International

Affairs, Office of Strategic Studies

Aung Thein Director-General, Department of General

Administration, Ministry of Home Affairs

Zaw Win Chief of General Staff, Police Force

6.00-8.00 p.m., Traders Hotel

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Lt.-Col. Hla Min Deputy Head, Department of International

Affairs, Office of Strategic Studies

Aung Thein Director-General, Department of General

Administration, Ministry of Home Affairs

Zaw Win Chief of General Staff, Police Force

Saturday, 19 May 2001

8.00-9.00 a.m., UNDP Office

Mahfuzur Rahman Bangladesh First Secretary

Harishchandra Ghimire Nepalese Chargé d'Affaires a.i.

Yusuf Shah Pakistan Ambassador

Ubayasekara Mapa Sri Lankan Ambassador

Dr. Farouk Riad

Hassan Mabrouk Egyptian Ambassador

Dimitry Darchenkov Russian Second Secretary

Vladimir Stamenovic Yugoslav Attaché

Shigeru Tsumori Japanese Ambassador

Jeanne Lennkh Assistant to United Nations Resident

Coordinator

(Apologies: Israeli Ambassador)

10.45 a.m.-1.30 p.m., Traders Hotel

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Lt.-Col. Hla Min Deputy Head, Department of International

Affairs, Office of Strategic Studies

Aung Thein Director-General, Department of General

Administration, Ministry of Home Affairs

Zaw Win Chief of General Staff, Police Force

4.15-5.15 p.m., Traders Hotel

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Lt.-Col. Hla Min Deputy Head, Department of International

Affairs, Office of Strategic Studies

Aung Thein Director-General, Department of General

Administration, Ministry of Home Affairs

Zaw Win Chief of General Staff, Police Force

5.30-5.45 p.m., Ministry of Foreign Affairs

Khin Maung Win Deputy Minister for Foreign Affairs

Officials from the Ministry

6.00-6.30 p.m., Traders Hotel

Michel Ducraux ICRC Head of Delegation

Jeanne Lennkh Assistant to United Nations Resident

Coordinator

7.00-7.30 p.m., Yangon Airport (initialling of the "Understanding")

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Jeanne Lennkh Assistant to United Nations Resident

Coordinator

Appendix 5

Understanding on an ILO objective assessment

Recalling previous discussions which were reported to the Governing Body at its March 2001 session relating to the possibility of an objective assessment being carried out by the ILO with respect to the practical implementation and actual impact of the framework of legislative, executive and administrative measures reported by the Government, within the overall objective of the complete elimination of forced labour in law and in practice;

Recognizing now the desirability of such an assessment being carried out as soon as practicable;

Noting the importance in this connection of the observation made by the ILO Committee of Experts on the Application of Conventions and Recommendations in its 2001 report;

Aware of the need to respect the sovereign right of the country as well as the independence of the Organization in the discharge of its functions;

The Government of Myanmar agrees to receive a high-level team (HLT) to carry out an objective assessment under the following conditions designed to ensure its credibility:

1. The team will be composed of high-level persons appointed by the ILO Director-General on the basis of their recognized qualifications, impartiality and knowledge of the region.

2. Taking into consideration seasonal weather conditions, the assessment shall be carried out in September 2001. The time needed to carry out the assessment in Myanmar could involve up to three weeks.

3. The members of the HLT shall enjoy, for the purpose and duration of the mission, the same protection and status accorded to officials of comparable ranks in the United Nations.

4. The HLT shall have complete discretion to establish and implement its program of work, meetings and visits, taking into account the indications provided, inter alia, in the aforementioned observation of the Committee of Experts on the Application of Conventions and Recommendations, and subject only to valid considerations of security. For this purpose, the HLT shall be accorded full cooperation from the relevant Myanmar authorities. During the establishment and implementation of the HLT's programme, the HLT and the Government may call upon the assistance of a facilitator recognized by all parties concerned as being a knowledgeable and fair intermediary.

5. Based on the results of the assessment, the HLT may provide such advice and comments as it deems appropriate.

6. The report of the HLT will promptly be made available to the Director-General and the Government and transmitted to the Governing Body for consideration at its November 2001 session.

19 May 2001.

(Initialled) U Soe Nyunt,

Chairman of the Myanmar Negotiating Team.

Francis Maupain.

Endnote 1

GB.279/6/1 and the three addenda to that document.

Endnote 2

The text of the resolution is reproduced in Appendix 6.

Endnote 3

The recommendations of the Commission of Inquiry are reproduced in Appendix 7.

Endnote 4

Letters were sent to the following 59 organizations: United Nations, UNHCR, UNICEF, UNDP, UNFPA, OHCHR, UNCTAD, WFP, UNEP, UNODCCP, UNRWA, UNAIDS, Economic Commission for Africa, ECE, Economic and Social Commission for Asia and the Pacific, Economic Commission for Latin America and the Caribbean, Economic and Social Commission for Western Asia, FAO, WHO, UNESCO, UNIDO, IAEA, WIPO, ICAO, UPU, IMO, WMO, ITU, IFAD, PAHO, IMF, World Bank, WTO, OECD, European Commission, Council of Europe, African Development Bank, Asian Development Bank, Inter-American Development Bank, European Bank for Reconstruction and Development, Caribbean Development Bank, League of Arab States, Organization of African Unity, CARICOM, Organization of American States, ASEAN, SAARC, Andean Community, SELA, LAIA, Nordic Council, OIC, CERN, ECOWAS, Arab Labour Organization, World Tourism Organization, IOM, Asian Productivity Organization and the Inter-Parliamentary Union.

Endnote 5

Information on the practice of forced labour up to November 2000 is contained in the 2001 report of the CEACR. The individual observation concerning the observance of Convention No. 29 by Myanmar is reproduced in Appendix 8.

Endnote 6

This statement could not be given to the 279th Session of the Governing Body and is reproduced here for information.

Endnote 7

Appended to the letter of 6 December 2000 from the Permanent Representative of the Myanmar Mission

Endnote 8

Paragraph 539 of the Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29). ILO Official Bulletin, Vol. LXXXI, 1998, Series B, Special Supplement. The full text of the report is also available on the ILO website at the following address: (http://www.ilo.org/public/english/standards/relm/gb/docs/gb273/myanm ar.html).

The Committee held a special sitting on the application by Myanmar of the Forced Labour Convention, 1930 (No. 29), further to the resolution adopted by the International Labour Conference at its 88th Session, concerning the application of article 33 of the Constitution. It noted the oral and written information submitted by the Government, and the discussion which followed. It recalled that this case had been discussed repeatedly in the Committee before the appointment of a Commission of Inquiry under article 26 of the Constitution, and deplored the lack of progress towards the elimination of forced and compulsory labour. The Committee noted the results of the Director-General's appeals to the ILO constituents, including employers' and workers' organizations as well as governments, and other international organizations, to review their relations with the Government of Myanmar in order to ensure that the Government of Myanmar could not take advantage of relations with them to perpetuate or extend the system of forced or compulsory labour referred to by the Commission of Inquiry. It also noted that, according to information submitted to the Governing Body in March 2001 and to the Committee, forced and compulsory labour was still being imposed on the citizens of the country. The Committee recalled that the Commission of Inquiry had called upon the Government to halt all use of forced or compulsory labour, to amend its legislation to render the practice illegal, and to punish all those who imposed forced labour. The Committee noted that Order No. 1/99 as supplemented by the Order of 27 October 2000 was a relevant but insufficient basis for improving legislation. The conditions spelled out by the Committee of Experts should be applied in good faith, and further measures would be needed to ensure that this was in fact done. The Committee welcomed the Government's decision to resume cooperation with the ILO. In this regard, it noted with interest that a recent mission by representatives of the Director-General (17-19 May 2001) had concluded an understanding for an objective assessment of the situation of forced labour following measures announced by the Government of Myanmar, and that the results of this objective assessment were to be brought before the Governing Body at its November 2001 session. It was pointed out that this was only a beginning, and the Committee called upon the Government once again to take all possible measures with the greatest urgency to eliminate forced and compulsory labour in all its forms, in following the recommendations of the Commission of Inquiry; to punish those responsible for imposing forced labour; and to give full cooperation to the High-Level Team which was to carry out the objective assessment referred to above. The Committee emphasized that, taking into account the discussion in the Committee, the High-Level Team should: (1) have sufficient authority to programme its activities; (2) have an appropriate composition which will allow the work to be distributed among its members; (3) be selected within the sole discretion of the Director-General; (4) be able to carry out its investigation in all the places in the country which it considered necessary to visit; and (5) have unrestricted access to all necessary sources of information. Those people who provided information to the Team must enjoy full protection. It was also noted that the United Nations Economic and Social Council had been asked to discuss the situation at its July 2001 session. The Committee requested the Governing Body to assess the report of the High-Level Team at its November 2001 session in order to consider what further steps were necessary to be taken at that time by the Government or by the ILO, and recalled that the Government should provide a detailed report to the Committee of Experts at its next session on all measures taken to ensure observance of the Convention in law and in practice.

The Government representative of Myanmar asked that the closing remarks of the President reflect the positive comments regarding the agreement reached by the Government and the ILO on the modalities for the objective assessment which had been made by delegates, including a number of Workers' delegates. This would introduce better balance into the text. He suggested therefore that the sentence in the conclusions beginning with "In this regard, it noted with interest ..." read "In this regard, it noted with appreciation ...". He also suggested that the phrase concerning Order No. 1/99 reflect the original wording of the Committee of Experts which read that the Order "... could provide a statutory basis for ensuring compliance with the Convention in practice ..." (paragraph 7). The experts, who are internationally recognized independent persons, had made an objective assessment in moderate language which should be retained.

In response to several questions, the Chairman clarified that the phrase in the conclusions concerning Order No. 1/99 to which the Government representative referred, used different wording but did not modify the conclusions on the same subject in paragraph 7 of the Committee of Experts' observation, and was entirely compatible with the Experts' meaning. This clarification would figure in the report of the discussion in the Committee's report.

The Employer members proposed to insert a paragraph in the general part of the Committee's report to the Conference to indicate that the Committee had held a special sitting on the issue of forced labour in Myanmar. The proceedings of this sitting should be reproduced in a special Part Three of the report. The Worker members agreed with this proposal.

B. Observation of the Committee on the Application of Standardsa Convention No. 29: Forced Labour, 1930

Observation 2000

(Not reproduced)

C. Documents submitted to the Governing Body (GB.280/6, GB.280/6(Add.1) and GB.280/6(Add.2))

GB.280/6

SIXTH ITEM ON THE AGENDA

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

Introduction

1. At its 279th Session (November 2000), the Governing Body had before it the report of the ILO technical cooperation mission which visited Myanmar from 20 to 26 October 2000 and subsequent documents provided by the Government. (Endnote 1) The Governing Body concluded that the conditions set out in paragraph 2 of the Conference resolution had not been met and that effect should accordingly be given to the provisions of paragraph 1 of the resolution adopted by the International Labour Conference at its 88th Session (June 2000). The measures mentioned in paragraph 1 of that resolution therefore came into effect on 30 November 2000. (Endnote 2) In the light of the discussion, it was however noted that the Director-General should continue to extend cooperation to the Government of Myanmar in order to promote full implementation of the recommendations of the Commission of Inquiry. (Endnote 3)

2. In accordance with the Conference resolution, by letter of 8 December 2000, the Director-General brought subparagraph (b) of operative paragraph 1 of the resolution to the attention of governments of member States of the ILO, and requested that they inform him of any action taken or envisaged in this regard. The Director-General also requested that the recommendations contained in the resolution be brought to the attention of the employers' and workers' organizations in the country so that they might take relevant measures and inform him either directly or through their government. A copy of this letter was also sent to the relevant national organizations of employers and workers.

3. In addition, international employers' and workers' organizations and other non-governmental organizations having consultative status with the ILO were also informed of the Governing Body actions.

4. In accordance with the Conference resolution, by letter of 8 December 2000, the Director-General informed the international organizations referred to in article 12, paragraph 1, of the Constitution of Myanmar's failure to comply with the recommendations of the Commission of Inquiry and called on the relevant bodies of these organizations to reconsider, within their terms of reference and in the light of the conclusions of the Commission of Inquiry, any cooperation they might be engaged in with Myanmar and, if appropriate, to cease as soon as possible any activity that could have the effect of directly or indirectly abetting the practice of forced or compulsory labour. (Endnote 4) The Director-General also requested these organizations to inform him of any action taken in this regard by the competent bodies of the organization. In addition, the Director-General has been in close touch with Ambassador Razali Ismail, the UN Secretary-General's special envoy to Myanmar, in connection with his two recent visits to the country on 9-12 October 2000 and 5-9 January 2001. The Office has also discussed the matter with the Special Rapporteur on the situation of human rights in Myanmar, Mr. Paulo Pinheiro.

5. With regard to subparagraph (d) of operative paragraph 1 of the Conference resolution, the Director-General has after close consultations with the United Nations secretariat set in motion the procedures necessary to have the question of Myanmar's failure to implement the recommendations of the Commission of Inquiry placed on the agenda of the July 2001 session of the United Nations Economic and Social Council (ECOSOC), seeking the adoption of recommendations directed by ECOSOC or by the General Assembly, or by both, to governments and to other specialized agencies and including requests similar to those contained in subparagraphs (b) and (c) of paragraph 1 of the Conference resolution.

6. In addition to the information communicated pursuant to the Conference resolution, a substantial amount of information was also received from other sources. This was in large part due to the wide publicity attracted by the coming into effect of the measures contained in the Conference resolution. A number of NGOs and individuals volunteered information to the Office regarding measures taken and other action initiated in support of the Conference resolution, as well as information regarding the current practice of forced labour in Myanmar.

7. Information received on measures taken in regard to the Conference resolution will be set out in four parts: (i) developments as regards the Government of Myanmar; (ii) measures taken by the Organization's constituents; (iii) measures taken by international organizations; (iv) other relevant information received.

Developments as regards the Government of Myanmar

8. Due to early closure of the Governing Body's 279th Session, a letter from the Permanent Mission of Myanmar to the Chairperson of the Governing Body stating its position following the Governing Body's conclusions reached his office too late to be brought to the attention of the Governing Body. This statement is reproduced in Appendix 1 for information.

9. In a letter dated 6 December 2000 to the Chairman of the 279th Session of the Governing Body, the Permanent Representative of the Myanmar Mission reiterated the concerns raised in the letter referred to in the preceding paragraph. The letter also contained an annex entitled "Resumé of the concrete measures taken by the Myanmar Government", which included information on the Government's position prior to the Governing Body's conclusions. This document is reproduced in Appendix 2 for information.

10. In a letter dated 22 December 2000 to the Government of Myanmar, reproduced in Appendix 3, the Director-General informed the Government that he had notified ILO Members and international organizations of the decision of the Governing Body, as contemplated in the relevant paragraph of the resolution, but stressed that he continued to extend cooperation to the Government in order to promote the full implementation of the recommendations of the Commission of Inquiry. He expressed the sincere hope that the measures currently in force would soon become unnecessary as a result of the Government's full application of these recommendations.

11. In reply to the Director-General's letter of 22 December 2000, the Government sent a letter dated 11 February 2000, reproduced in Appendix 4, in which it recalled that it had received two technical cooperation missions from the ILO in its efforts to make its domestic legislation fully in line with Convention No. 29. It had put into place a framework of legislative, executive and administrative measures to make forced labour illegal both in law and in practice. However, "... powerful forces in the ILO Governing Body totally ignored the concrete measures taken by Myanmar as well as its demonstrated desire to cooperate with ILO". The letter further stated that despite this, Myanmar was resolute in its endeavours to implement the framework of measures that it had put in place. The Committee for Implementation of Convention No. 29 was holding regular meetings to review the situation. The national monitoring mechanism which had been put in place was also functioning smoothly. There had been a few cases where the latest legislative order had been breached. These cases had been investigated and necessary legal action was taken against the perpetrators. The Government thanked the Director-General for his readiness to extend cooperation to Myanmar, and fully realized that its national efforts would receive better acceptance by its detractors if they involved the ILO. However, until such time that Myanmar received fair and equitable treatment, it would have to itself continue its efforts for the total elimination of the practice of forced labour in Myanmar. The Government gave its assurances that it would continue to take steps to ensure that forced labour was illegal in Myanmar and that the framework of measures put in place would be resolutely implemented.

12. The Director-General responded to this reply by letter dated 1 March 2001, reproduced in Appendix 5 The Director-General will inform the Governing Body of any future developments.

Measures taken by the Organization's constituents

Measures taken by member States

13. By 5 March 2001, responses had been received from 39 member States, as well as a number of national employers' and workers' organizations. A summary of these responses follows. Given the ongoing nature of some of the reported measures, the present report will be completed, as appropriate, with any further relevant information for the International Labour Conference as indicated in paragraph 67 below. As a result of member States forwarding information pursuant to the Conference resolution to national employers' and workers' organizations, a considerable amount of information was received separately from these organizations about actions they had taken in relation to the resolution.

14. In a letter dated 19 January 2001, the Government of the United States indicated that it had worked continuously and with bipartisan support to seek a return to democracy and improvements in human rights, including an end to forced labour, in Myanmar. In this regard, the Government had imposed a series of diplomatic and economic sanctions against Myanmar in recent years, including suspension of economic assistance, downgrading diplomatic representation to chargé level, an arms embargo, suspension of trade benefits under its GSP programme, opposition to support programmes from international financial institutions, restriction on visas for Myanmar individuals involved in the suppression of democracy and human rights, and a ban on US investment in Myanmar. The Government had also supported a number of actions taken by the ILO with regard to forced labour in Myanmar, including the November 2000 finding by the Governing Body that insufficient progress had been made to withhold the measures adopted by the Conference. At the same time, the Government noted that the Myanmar authorities and Daw Aung San Suu Kyi of the National League for Democracy had confirmed that they were engaged in dialogue. The Government hoped that this was a genuine effort to achieve national reconciliation, and that it brought concrete and timely progress towards ending forced labour and other human rights abuses in Myanmar. The Government hoped this process succeeded, but believed that in the absence of significant and measurable progress, ILO Members, including the United States, should be prepared to consider additional measures, including trade sanctions, in response to the article 33 decision of the Conference. The Government stressed that there was no evidence yet before the Governing Body or the Conference that suggested the recommendations of the Commission of Inquiry had been fully implemented. Finally, the Government expressed continued misgivings regarding an ILO presence in Myanmar.

15. In a letter dated 15 February 2001, the Government of Thailand stated that in order to take measures in compliance with the Conference resolution, on 10 January 2001 the Ministry of Labour and Social Welfare had held a meeting of relevant government agencies, workers' and employers' organizations and others, and that the Government could therefore give assurances that no Thai investment in Myanmar contributed, directly or indirectly, to the exaction of any form of forced labour. Every possible effort would be made to discourage the practice of forced labour, should the Government become aware of its existence in any form. In order to resolve this issue effectively and strengthen cooperation with the ILO, agreement had been reached to set up a steering committee in order to monitor and follow up the case.

16. The Governments of Denmark, Finland, France, Germany, Ireland, Italy, Netherlands, Sweden and United Kingdom indicated that the matter of how best to give effect to the recommendations contained in the Conference resolution had been discussed with employers' and workers' organizations, among EU Member States and with the European Commission. They shared the international concern at the practice of forced labour in Myanmar, a practice which they feared had not yet ended. The European Community suspended GSP trade privileges in 1997 as a result of this practice. The European Union had also taken a number of other measures over the last four years, set out in its Common Position, in response to the political situation in Myanmar. The Myanmar regime had taken certain steps aimed at ending the practice of forced labour, but it needed to be outlawed legally, ended in practice, and any continuing practitioners punished. The European Union was monitoring the situation closely and, should the authorities in Myanmar fail to take the necessary action in this respect, the European Union stood ready to take further measures. The European Union made clear its concerns regarding forced labour during the visit of its Troika mission to Myanmar in January 2001. It sincerely hoped that contacts would be renewed between the ILO and Myanmar and that an ILO presence might be established in the country in order to verify the definitive end to the practice of forced labour. The Government of Ireland added that it intended to write to any companies with trade or investment links with Myanmar to express its support for the ILO resolution. The Government of Denmark added that its Standing Committee for ILO matters had recommended that Danish enterprises consider their relations with Myanmar. The Government of France added that it had undertaken an exhaustive assessment of its cooperation with and assistance to Myanmar, currently limited to the humanitarian field, in order to ensure that these relations could not in any way perpetuate or extend the practice of forced labour in the country. A census of French companies working in Myanmar was also underway, in order to inform them of the ILO resolution. The Government of Italy added that it had instituted an in-depth review of bilateral relations with Myanmar to ensure that they could not be taken advantage of to perpetuate the system of forced labour in that country. Italian commercial relations with Myanmar had been reduced to a minimum following the deterioration in the political and human rights situation. Between January and October 2000, the most recent period for which figures were available, the total trade with Myanmar had been 32 million euros, and there was no Italian investment in Myanmar, nor was any currently planned. The number of Italian tourists visiting Myanmar between 1999 and 2000 was minor. The Government of the Netherlands added that its policy was neither to encourage Dutch companies to enter into activities in Myanmar nor to discourage them. Total trade amounted to around US$19 million annually. The Government of Sweden added that its relations with Myanmar were of limited extent. Its economic relations were negligible, with imports for the period January-October 2000 standing at around SEK20 million (mostly wooden and textile products) and exports for the same period standing at SEK1.2 million. It was ready to take measures to ensure that the country's trade with Myanmar did not support the system of forced labour. As one measure, it would officially inform Swedish importers of the Conference resolution and the recommendations of the Commission of Inquiry.

17. In a communication dated 28 February 2001, the Government of Switzerland stated that due to lack of progress in democratization in Myanmar and due to systematic violation of human rights (including workers' rights), it had passed a law on 2 October 2000 instituting measures against Myanmar. This law, a copy of which was provided, imposed an arms embargo and prohibited the export to Myanmar of equipment that could be used for the purposes of internal repression. In addition, members of the Government of Myanmar and their families were subject to a freeze of their assets in Switzerland and were prohibited from entry into or transit through Switzerland. Consultations had established that relations between Switzerland and Myanmar were minor, with imports over the period January to November 2000 standing at Sw.frs.2.2 million and exports at Sw.frs.3.5 million. The number of Swiss tourists visiting Myanmar was also minor. In addition, the Government pointed out that the international "Clean Clothes" campaign had particularly targeted an underwear company based in Switzerland. The Swiss tripartite consultation commission, while welcoming recent legal measures taken by the Government of Myanmar, hoped that these would be translated into action. It further hoped that Myanmar would accept a permanent ILO presence, which would be able to verify the implementation of the recommendations of the Commission of Inquiry, and in this way that a normalization of relations between Myanmar and the international community might be facilitated. Taking into account the fact that existing bilateral economic relations were minor, and given the initial steps taken by the Government of Myanmar towards a political opening, it was not envisaged for the moment that the Government would take additional measures against Myanmar.

18. In a communication dated 26 January 2001, the Government of Norway confirmed its continued support for the EU's Common Position on Myanmar. It did not provide humanitarian assistance to organizations or activities that contributed in any way to forced labour in Myanmar. Half of the Norwegian assistance related to Myanmar was applied to human rights and democracy measures. In 1998 the Government issued a call, which remained in effect, to Norwegian firms not to trade with Myanmar. Current trade with Myanmar was marginal. In December 2000 the Government had met with the Norwegian Federation of Trade Unions to discuss the question of a possible boycott.

19. In a communication dated 1 March 2001, the Government of Australia stated that it had conducted a review of relations with Myanmar, which had established that no Australian government-funded aid programmes or activities supported or perpetuated the practice of forced labour. The Government was unaware of any Australian firms engaging in activities in Myanmar which were linked with forced labour, but its embassy in the country had advised Australian companies known to be working or investing there of its review and recommended that they ensure their compliance with the Conference resolution. In addition, the Australian Government had taken constructive steps in other areas to encourage the Myanmar authorities to eliminate forced labour. It had funded a series of human rights training workshops in Yangon in 2000 for some 50 middle-level officials, one of which was an "international law overview" during which participants openly discussed sensitive issues including the issue of forced labour.

20. The Governments of Austria, Croatia, Ecuador, Nicaragua, Saudi Arabia, Trinidad and Tobago and Ukraine stated that they had communicated the details of the Conference resolution to their employers' and workers' organizations, but did not have any further information to provide at this stage.

21. The Governments of Chile, Cuba, Czech Republic, Iceland, Islamic Republic of Iran, Jordan, Kenya, Lithuania, Malaysia, Mali, Morocco, Panama, Philippines, Romania, Singapore, Suriname and Togo stated that they had no relations with Myanmar that could be taken advantage of to perpetuate or extend the practice of forced or compulsory labour referred to by the Commission of Inquiry. The Government of Singapore also reiterated that the adoption of promotional measures rather than sanctions would be more appropriate and effective in addressing the issue of forced labour in Myanmar. The Government of the Czech Republic also stated that it had joined the EU Common Position on Myanmar, adopted in 1996 and subsequently extended. It had also joined the EU embargo on weapons, ammunition and military equipment export to Myanmar, had cancelled aid which was not of a clear humanitarian character as well as development aid programmes. Bilateral relations were also suspended, including those of social partners. The Government of Malaysia also stated that it would continue, along with other ASEAN members, to urge the Myanmar authorities to implement measures that would bring an end to all practices described as forced labour by the Commission of Inquiry. It looked forward to an amicable solution which would address the issue effectively.

Measures taken by national employers' and workers' organizations

22. The Confederation of Free Trade Unions of the Slovak Republic noted that the Slovak Republic followed the EU position on Myanmar. The Slovak Republic did not maintain any bilateral political relations with Myanmar, but did maintain trade contacts within the EU restrictions. There was not thought to be any investment in Myanmar by Slovak enterprises, but a review of the type of commodities imported from Myanmar to the Slovak Republic showed that the majority belonged to sectors which were subject to violation of fundamental labour rights. Attached to the letter was a list of Slovak enterprises exporting to and importing from Myanmar as well as a breakdown of this trade by sector and whether it was likely to involve forced labour.

23. In a communication dated 20 February 2001, the Confédération Générale du Travail Force Ouvrière indicated that it had requested the French Government to provide it with a list of French companies having relations with Myanmar as well as details and amount of business dealings with that country. In addition, the organization had written to a certain French company involved in hotels and tourism to request them to reconsider their activities in Myanmar. The Confederation was not satisfied with the company's response that its presence would have positive effects. Moreover, the Confederation had repeatedly pressed the French Government to become involved in the question of the presence in Myanmar of a certain French multinational company. The Confederation had also requested that a special session of the consultation commission for ILO matters be held, dedicated exclusively to the question of Myanmar.

24. Communications from Norwegian employers' and workers' organizations were forwarded by the Government of Norway. The Norwegian Confederation of Trade Unions stated that together with other Norwegian voluntary organizations it had played an active part in trying to bring about a statutory Norwegian economic boycott of Myanmar. The Confederation of Vocational Unions indicated that it strongly urged the Government to implement such a boycott. The Confederation of Norwegian Business and Industry welcomed the Government's requests for abstention from economic cooperation with Myanmar and would encourage member enterprises to comply with this request. In a separate communication, the Norwegian Confederation of Trade Unions provided translations of correspondence between itself and the Government of Norway regarding the Confederation's call for a Norwegian economic boycott of Myanmar.

25. The Swedish Trade Union Confederation indicated that it had requested the Swedish Government to take additional measures against Myanmar, including a ban on investments and on the import of products from Myanmar. Its affiliated national unions would undertake a review to ensure that no Swedish companies or authorities were economically active in Myanmar, including imports, exports, investment and trade. The organization also requested that Sweden, as holder of the EU presidency, should seek a decision by the EU Council of Ministers banning investments by all companies based in the European Union and banning imports of all products originating in Myanmar.

26. Information from German workers' organizations was forwarded by the Government of Germany. A report on the elimination of forced labour in Myanmar by the German Confederation of Trade Unions discussed the background to the case and noted that most forms of economic relations with Myanmar made at least some use of infrastructure built with forced labour. All German companies were advised to take a critical look at their economic ties to business partners in Myanmar. The works councils of enterprises that had economic relations with Myanmar should request management for detailed information about the nature of these ties, and urge management to cut any ties which could not be maintained without making use of infrastructure constructed using forced labour. Such requests were covered by paragraph 80 of the Works Constitution Act, since such an enterprise would be party to what the international community considered a grave violation of the law. A letter to the Government of Germany from the German Union of Salaried Employees supported any action the Government could take regarding the situation in Myanmar, including representations to the Government of Myanmar via its embassy.

27. The Union Syndicale Suisse provided information on the extent of trade relations between Myanmar and Switzerland, set out the details of the law passed by the Government of Switzerland against Myanmar on 2 October 2000, and noted that the Swiss-based textile company had been targeted by the "Clean Clothes" campaign. Similar information was provided by the Government of Switzerland and is set out in more detail in paragraph 17 above.

28. Information from the Confederation of British Industry (CBI) was forwarded by the Government of the United Kingdom. In a letter dated 8 February 2001 to the Government of the United Kingdom, the Confederation indicated that its member companies had had the Government's policy towards Myanmar brought to their attention. The CBI was one of the strongest proponents of tough action against Myanmar and would continue to support the ILO action.

29. The Government of Finland forwarded information from the Confederation of Finnish Industry and Employers. The Confederation indicated that it did not have any relations with Myanmar or business organizations there. It supported the EU position and informed its membership (constituting 85 per cent of Finnish industry) on a regular basis about the ILO's recommendations. Finnish enterprises did not operate in Myanmar nor have industrial investments or networks there. Trade between Finland and Myanmar was minor, with exports over the period January-November 2000 standing at 248,000 euros and imports over the same period standing at 2 million euros (mostly clothing).

30. The Barbados Workers' Union and the National Confederation of Free Trade Unions of Romania indicated that they had no relations with Myanmar that could be taken advantage of to perpetuate or extend the practice of forced or compulsory labour referred to by the Commission of Inquiry.

31. The International Organisation of Employers informed all its member federations of the November Governing Body debate and highlighted the employers' position, clarified the meaning of the resolution and accompanying measures and informed them that one of the measures would be to ask constituents to review their relations with Myanmar. Employers have been involved in discussions with governments at national level on the country response to the resolution.

Measures taken by international organizations

32. By 5 March 2001, responses had been received from 20 international organizations. These came from the secretariats of these organizations, and no information was provided at this stage about any discussions in the relevant bodies of these organizations regarding the reconsidering of any cooperation they may be engaged in with the member concerned.

33. The United Nations Secretary-General indicated that the matter had been brought to the attention of all offices concerned in the United Nations. The United Nations and its programmes and funds could not be involved in any activities that might have the effect of directly or indirectly abetting the practice of forced or compulsory labour as this would be contrary to Article 1 of the United Nations Charter.

34. The European Commission stated that it strongly supported the significant position the ILO had taken on Myanmar, and had consequently engaged in discussions with the European Union Member States on the implementation of the terms of the Conference resolution. Action had already been taken in 1997 following an investigation into allegations by European trade union organizations of forced labour in Myanmar. As a result, Myanmar's access to the European Union's Generalised System of Preferences had been removed. The European Union had also taken a number of other measures over the last four years which were set out in its Common Position, first adopted in 1996 and strengthened on a number of occasions since. The Commission considered that the authorities of Myanmar needed to take rapid steps to ensure full compliance with ILO recommendations on the elimination of forced labour. The Commission, in common with the Member States of the European Union, was monitoring the situation closely and, should the authorities fail to take the necessary steps, the Commission would be ready to propose further measures to be decided by the Council, including possible measures in the field of trade and investment relations.

35. The Office of the United Nations High Commissioner for Refugees (UNHCR) indicated that it had made an assessment of its activities in Myanmar and concluded that there were no activities which might be considered as directly or indirectly abetting the practice of forced labour. Attached to the communication was a "note on UNHCR's activities in Myanmar and compulsory labour", which described the nature of UNHCR's operations in Myanmar in relation to each of its six areas of intervention and discussed any impact this assistance might have on the practice of forced labour. This note is reproduced in Appendix 9.

36. The United Nations Development Programme (UNDP) indicated that its country office in Myanmar had recently carried out a thorough review of its project activities in Myanmar in the context of the Conference resolution and had confirmed that there were no UNDP-funded activities which directly or indirectly supported the practice of forced or compulsory labour. The UNDP would continue to monitor this situation very closely during the implementation of its project activities. Attached to the communication was a "note on UNDP's activities in Myanmar in the context of the ILO resolution", which gave details of UNDP's assistance to Myanmar and discussed any impact this assistance might have on the practice of forced labour. This note is reproduced in Appendix 10.

37. The United Nations Children's Fund (UNICEF) indicated that it had evaluated the impact that its activities might have on forced labour and concluded that by design and practice its programme in Myanmar neither directly nor indirectly abetted the practice of forced labour. A new country programme had just taken effect and during development great care had been taken to avoid association with parties involved in the practice of forced labour. Community participation in its projects was strictly on a volunteer basis, and at all levels, all possible precautions were taken to prevent support of forced labour in the organization's operations.

38. UNAIDS indicated that with respect to its activities in Myanmar its co-sponsors had established close working relationships with the Ministry of Health as well as international, national and local non-government organizations. It had reviewed the modalities of its work in light of operative paragraph 1 of the Conference resolution and had no reason to believe that the Ministry of Health had violated this provision. It also noted that all UN agencies operating in Myanmar had their programmes examined by their respective Boards to ensure adherence to international conventions. Its partnerships with international NGOs had been consistently guided by protocols widely recognized in the humanitarian field. In addition, those organizations were signatories to a code of conduct that ensured a high level of ethical programming and operations.

39. The United Nations Population Fund (UNFPA) indicated that although Myanmar was one of the priority countries under its resource allocation programme, it had not yet supported a full-scale country programme due largely to the prevailing political situation. It allocated less than $1 million annually for reproductive health activities. No UNPFA-funded activities benefited from or contributed to any form of forced labour, be it directly or indirectly.

40. The World Food Programme (WFP) stated that it operated exclusively in the Northern Rakhine State of Myanmar, which was a food deficit area. It had been working in the area, in coordination with UNHCR, since 1994 in such activities as relief, food for education, and food for community asset creation (FCAC). Workers received a daily food ration of 3.5 kg of rice for a family of five. FCAC activities were community based and voluntary, and mainly involved the building of irrigation dams, village access roads and the upgrading of township roads.

41. The International Civil Aviation Organization (ICAO) stated that it conducted technical cooperation activities in Myanmar which were for the safety and efficiency of civil aviation in the country and to facilitate safe movement of international civil aviation overflying the airspace of Myanmar. Its ongoing technical cooperation activities in this regard were related to the procurement of essential communication and navigation equipment and for the enhancement of capabilities with respect to the overseeing of flight safety. Technical assistance had also been offered to the Department of Civil Aviation of Myanmar to upgrade the capability of the Civil Aviation Training Centre and for the expansion of Hanthawadi International Airport at Yangon. The ICAO stressed that its technical cooperation activities in Myanmar did not, to its knowledge, directly or indirectly abet the practice of forced or compulsory labour.

42. The International Maritime Organization (IMO) indicated that Myanmar had been chosen to participate in four regional projects for Asia, which were still ongoing. These projects promoted ship inspections by port States, safety of non-convention ships, training for maritime instructors and examiners and port State control officers. In addition, some IMO courses and publications had been provided to Myanmar in 2000, following a needs assessment of the maritime training institutes in the country. Accordingly, the IMO's technical assistance in improving the competency and skills of maritime personnel did not have the effect of directly or indirectly abetting the practice of forced or compulsory labour in Myanmar.

43. The World Trade Organization (WTO) indicated that the matter would be followed up in the WTO with the Chairperson of the General Council. WTO rules did not afford the secretariat authority to adopt an independent line of action in matters such as these. WTO members had to decide on any course of action.

44. The Universal Postal Union (UPU) stated that it had looked into the matter and was not aware of any practice of forced or compulsory labour in the postal sector in Myanmar. If there were at all any such practice then it would most likely exist in remote rural areas. Myanmar was not a member of the UPU's elective bodies and the UPU had a rather limited cooperation with Myanmar at the official ministerial level. It was aware, however, that postal services were still under the direct supervision of the Myanmar Government, which meant that fundamental human rights were more likely to be fully observed in this sector. It therefore felt that there were no legal or other reasons for ceasing any official postal relations with Myanmar.

45. The Inter-Parliamentary Union (IPU) stated that since Myanmar did not have a parliament, no contacts were maintained with the authorities in the country. The only dealings with Myanmar were in the context of the IPU's Committee on the Human Rights of Parliamentarians which since 1991 had examined the cases of members of the Myanmar Parliament who were selected in 1990 and were to date prevented from exercising the mandate that was entrusted to them, in particular the cases of those who were in detention and could therefore be subject to forced labour. The IPU provided the text of its most recent resolution on Myanmar, adopted in October 2000, which "called again on its member parliaments to press for the respect of democratic principles in Myanmar and to show their solidarity with their elected colleagues from the Pyithu Hluttaw (Myanmar Parliament) by whatever means they deemed appropriate ...".

46. The African Development Bank Group, the International Telecommunication Union, the Nordic Council, the Organisation for Economic Co-operation and Development (OECD), the Pan American Health Organization, and the Arab Labour Organization stated that they had no relations with Myanmar that could be taken advantage of to perpetuate or extend the practice of forced or compulsory labour referred to by the Commission of Inquiry. The Asian Development Bank stated that it presently had no active operations in Myanmar and that the latest loan dated back to 1987 and the latest technical assistance to 1988.

Other relevant information received

Correspondence between the Government of Myanmar and the United Nations

47. The Office received from the United Nations copies of correspondence between the Government of Myanmar and the United Nations Secretary-General. In a communication dated 8 January 2001 the Government of Myanmar informed the Secretary-General of certain action that it had taken to implement the recommendations of the Commission of Inquiry and stated that the decision of the Governing Body was "a grave injustice". The Government also considered that the measures contained in the Conference resolution calling on other international organizations to "impose sanctions" against Myanmar "clearly overstepp(ed) the constitutional mandate of the ILO". The Government called on the Secretary-General in his role as the Chief Executive of the entire UN system to use his good offices to prevent these measures being taken. The Government was greatly concerned that the outcome from such extreme measures would set a dangerous precedent for the entire UN system. The Secretary-General responded in a letter dated 24 January 2001, noting that the Conference resolution was a decision of an inter-governmental body and that the ILO Director-General was mandated to implement it. The Secretary-General also suggested that the Government might wish to consider writing to the ILO Director-General expressing its readiness to receive a mission to assess and verify the progress made on the forced labour issue before the next meeting of the Governing Body.

Communications from groups in Myanmar regarding the Governing Body conclusions

48. An "open letter regarding ILO decision on Myanmar" dated 29 November 2000 from "Workers of Myanmar" was received by the Director-General. The letter stated that it was from 18 million workers employed by public and private enterprises. The workers believed that the Governing Body's conclusions would have a direct and immediate negative impact on the workforce. The Government of Myanmar had passed strong penal laws to prohibit forced labour and the workers believed that the ILO had already succeeded in bringing better working conditions for the workers in Myanmar. The workers therefore petitioned the ILO to reconsider its actions and maintain a constructive partnership with Myanmar.

49. An open letter of the same title and same date was also received from the "International Business Community in Myanmar". The letter stated that the International Business Community was deeply disappointed by the Governing Body's conclusions. The wide range of businesses it represented employed a total of over half a million workers in Myanmar, and indirectly provided employment to many more. It suggested that the "sanctions" would only hurt the majority of Myanmar workers, rather than helping them. The ILO had secured the issuance by the Myanmar authorities of a number of orders making forced labour illegal and the ILO should remain constructively engaged with Myanmar to review compliance with these orders. It urged the ILO member States and workers' and employers' organizations to carefully reconsider their position, as it was concerned for the real welfare of workers in Myanmar. It also urged the Government of Myanmar to maintain a positive dialogue with the ILO.

Information on action taken in support of the Conference resolution

50. The Office received copies of letters from a number of national workers' organizations to their governments regarding the Conference resolution.

51. The National Automobile, Aerospace, Transportation and General Workers' Union of Canada (CAW) called on the Canadian Government to act upon the Conference resolution without delay, beginning with an immediate halt to the activities of all Canadian commercial and economic interests in Myanmar, including a ban on imports from that country, pending a comprehensive review. Such a review had to prove unequivocally that these activities did not benefit in any way, or encourage in any form, the practice of forced labour. The Confédération des syndicats nationaux requested information from the Canadian Government regarding the mechanisms set up by the Government to ensure that Myanmar implemented the recommendations of the Commission of Inquiry, and insisted that Canada took all means at its disposal to ensure the implementation of these recommendations. The Canadian Labour Congress communicated to the Canadian Government the text of a statement on Myanmar to be adopted by its Executive Committee and Council. The Congress would continue to monitor Canadian investment directly or indirectly connected to forced labour in Myanmar. The Congress was encouraging its members to boycott products imported from Myanmar. The Canadian Government should now take a number of concrete steps regarding Myanmar, including researching, monitoring and reporting on investments and imports, reviewing the Special Economic Measures Act to allow for concrete and specific measures to be taken, and convening a meeting, with the participation of the Congress, of the Government's Working Group on Corporate Social Responsibility to jointly develop steps to address the issue.

52. The Centrale des Syndicats des Travailleurs du Rwanda and the Bangladesh Jatio Sramik League urged their respective governments to take action with regard to the Conference resolution.

53. The Lanka Jathika Estate Workers' Union recommended that the Sri Lankan Government take up the matter of the Conference resolution with the Government of Myanmar and urge it to implement the recommendations of the Commission of Inquiry, suggested that the leading government trade union, possibly with the assistance of the Labour Ministry, coordinate a joint representation of all unions to the Government of Myanmar, and noted that a similar protest and appeal by the Employers' Federation would be appropriate.

54. The Office also received information from two international workers' organizations regarding action taken in support of the Conference resolution.

55. In a communication dated 26 January 2001, Union Network International (UNI) transmitted the report of a joint mission to the Thai-Myanmar border that it had conducted with the ICFTU in January 2001. The mission had visited two sites on the border and met with numerous refugees and trade union activists operating in Mon State and Karen State. The persons met noted that the Conference resolution and resulting international pressure had been effective to a certain extent, but there was continuing use of forced labour or payments of money having to be made in lieu of force labour. There were numerous killings and destruction of paddy fields and villages causing thousands to be displaced, particularly in Karen State. The majority of those displaced were starving and suffering from disease. All persons that the mission met, including hundreds of refugees, supported the imposition of more comprehensive sanctions on Myanmar by the international community. While they accepted that ordinary people would suffer as a consequence of sanctions, they were of the strong opinion that it was necessary to force the Myanmar authorities to restore democracy and end the use of forced labour. The mission recommended that trade unions should continue to provide moral and financial support to the Federation of Trade Unions of Burma (FTUB), that UNI should work closely with all its affiliates in the finance sector to develop a coordinated strategy to discourage any investments or provision of financial services to business related to Myanmar, that UNI might consider working closely with its affiliates in other strategic sectors to put further economic pressure on the Myanmar authorities, that UNI would provide training and assistance to the FTUB and other unions, as well as humanitarian assistance for displaced civilians and refugees, and that the ICFTU/Global Unions Conference on Myanmar to be held in Tokyo from 28 February to 1 March 2001 would be a timely opportunity to express commitment to the struggle for the restoration of democracy and respect for human rights and trade union rights in Myanmar.

56. A communication dated 16 February 2001 from the ICFTU provided abundant information regarding the current practice of forced labour in Myanmar (dealt with in the following section of this document), as well as information on action taken by the ICFTU in support of the Conference resolution. As regards action taken, the ICFTU indicated that it had sought to review relations maintained with Myanmar by its constituents to determine which of these relations might have the effect of aiding Myanmar to perpetuate the system of forced labour. However, to the best of its knowledge neither the ICFTU, the international trade secretariats, their regional organizations, nor any of their affiliates maintained any relation with the Myanmar regime. Any relationship which they may have with Myanmar was limited exclusively to the promotion of workers' fundamental and other human rights. In January 2001, the ICFTU issued a circular to all its 221 affiliated national union centres in 148 countries, its regional organizations, all its executive board members and to the international trade secretariats, requesting them to take a number of steps with respect to the Conference resolution. These steps included requesting their respective governments and national employers' organizations to provide a complete list of enterprises based in their respective countries maintaining trade relations with Myanmar, and requesting their respective governments to provide comprehensive information about the total value of that country's trade with Myanmar, taking into account a list of products, provided by the ICFTU, production of which might involve forced labour. A briefing paper appended to the circular discussed far-reaching measures, including trade and investment bans, on the grounds that economic engagement with Myanmar supported the military regime.

57. The ICFTU communication also provided information on other steps taken by it and its affiliates. Prior to the departure of the recent EU delegation to Myanmar, the ICFTU had briefed one of the members of the delegation on its views. An ICFTU affiliate, LO-Sweden, had also briefed its own Government which, as holder of the rotating EU Presidency, led the delegation. In February 2001 the ICFTU had given its views to separate meetings of European NGOs and the Development Committee of the European Parliament. A number of ICFTU affiliates had reported taking various steps in support of the Conference resolution, including pressing their respective governments to strengthen their position against Myanmar (such as by the adoption of trade and investment bans), and calling for consumer boycotts of brands produced in Myanmar or made by companies having economic relations with Myanmar. A number of other initiatives were also taken at the regional or subregional level.

58. The ICFTU also noted in its communication that several EU governments remained reluctant to contemplate a strengthening of the EU Common Position when it is reviewed in April 2001, and that several governments seemed to be hoping for a notable improvement in the situation as a result of the "secret dialogue" between the Government of Myanmar and Daw Aung San Suu Kyi. These governments seemed to ignore the fact that similar talks in the past had yielded no result and that opposition members, who should never have been arrested in the first place, were often released shortly prior to important diplomatic visits. Some analysts believed that the ILO measures had played an important role in bringing about a dialogue between the Government and the National League for Democracy, and thus any hesitation in implementing the measures at this time might well jeopardize the talks.

59. The ICFTU noted that a comprehensive union strategy on Myanmar would be discussed at a conference to be held in Tokyo at the end of February. The Office was represented at this conference, which brought together trade unionists and international trade secretariats from across the Asia-Pacific regions, as well as from Europe and the United States. The Federation of Trade Unions of Burma (FTUB) was also represented. The conference adopted a Declaration, as well as a Plan of Action which is reproduced in Appendix 11.

Information regarding the current practice of forced labour in Myanmar

60. A considerable amount of information was also received from a number of international workers' organizations and other non-governmental organizations regarding the current practice of forced labour in Myanmar. The information concerning actual practice since November 2000 is briefly summarized below. (Endnote 5)

61. In its communication dated 26 January 2001, Union Network International indicated that, according to persons met by its joint mission, the Conference resolution and resulting international pressure had been effective to a certain extent, for example in helping to bring about the dialogue between the Myanmar authorities and Daw Aung San Suu Kyi. There was, however, continuing use of forced labour or payments of money having to be made in lieu of forced labour.

62. In its communication dated 16 February 2001, the ICFTU provided extensive information regarding the current practice of forced labour in Myanmar. The ICFTU noted that the military junta had not taken any action aimed at genuinely curbing, let alone eliminating, forced labour. Rather, military and administration officials at every level had taken action aimed at hiding the extent and nature of forced labour imposed on the civilian population, at weakening or nullifying the effects of any orders preventing forced labour that might have been issued by superior levels, and at preventing and countering, through propaganda, disinformation and deception, the measures foreseen by the Conference resolution. This action included a massive campaign of letter-writing and petition signing, by so-called "representative workers". Referring to the open letter discussed in paragraph 47 above, the ICFTU considered that this letter was part of a campaign by the Government to counter the Conference resolution.

63. Appended to the ICFTU communication were 21 documents providing over 300 pages of detailed information on the recent practice of forced labour in Myanmar. According to the ICFTU, this information showed that in practice forced labour had continued unabated. The information included detailed testimonies, reports and photographs of forced labour in various areas. On the basis of one of these reports alone, the ICFTU believed that at least 80,000 individuals, including women, children and elderly persons, from four districts of Karen State were forced to perform labour during the period November 2000 to January 2001. Two army officers were named in the report as having ordered and organised forced labour on road construction.

64. An essential part of the ICFTU submission consisted of translations, as well as many copies of originals, of orders demanding forced labour issued by the military or paramilitary groups under its control, as well as the local administration and the Myanmar Police Force. The submission contained over 500 such orders issued after May 1999, including many that had been issued since November 2000. These orders are similar in style, form and content to the orders already examined by the Commission of Inquiry and the regular ILO supervisory mechanisms and found to be authentic.

65. Details of a large number of specific instances of forced labour were contained in the ICFTU submission, relating to portering for regular patrols and military operations, the construction of roads, bridges and fences, the construction and servicing army camps, including the provision of building materials for these camps, the provision of transport for the military, the collection of firewood for use by army camps or in army-owned brick kilns, work in army-owned rice plantations, and work as unarmed sentries or messengers for the military. One order from an army battalion informed village heads that porters and bullock carts would only be requisitioned for use on military operations, and not for administrative purposes, but in general the pattern of forced labour demands appeared to be essentially unchanged from the practice reported by the Commission of Inquiry. The large number of different military units and other authorities issuing demands for forced labour suggested that the practice remained widespread.

66. A document prepared by the Federation of Trade Unions of Burma, and contained in the ICFTU submission, indicated that a number of means had been used by the authorities to cover up their use of forced labour. These included issuing orders for villagers to attend meetings at the army camp, where they were requisitioned for forced labour, rather than issuing explicit orders for forced labour; issuing undated, unsigned and unstamped orders; demanding that written orders were returned to the issuing army personnel; using civilian authorities to requisition labour on behalf of the military; and arbitrarily arresting young, healthy persons, who after a few days in prison would be sent to work as porters for the military, dressed in used army uniforms (but who could be recognized as porters as they were barefoot).

Concluding comments

67. In the light of the above, and in accordance with paragraph 1(a) of the Conference resolution, the question of the implementation of the Commission of Inquiry's recommendations and of the application of Convention No. 29 by Myanmar will be discussed by the 89th Session of the International Labour Conference, at a sitting of the Committee on the Application of Standards specially set aside for the purpose. In this connection, the Governing Body may wish to request the Director-General to transmit to the Conference Committee the present report together with the record of its consideration, as well as any further information of relevance for its discussion. The Conference Committee will have before it the report of the CEACR together with any other relevant information.

Geneva, 9 March 2001.

Appendix 1

Statement by His Excellency U Mya Than, Leader of the Myanmar Observer Delegation at the Plenary of the 279th session of the ILO Governing Body after the adoption of the decision on the situation of Myanmar (Endnote 6) (Geneva, 16 November 2000)

Mr. Chairman,

Today is indeed a sad and solemn day for the ILO. It will go down in the history of the ILO as the most deplorable day for this Organization.

Today Myanmar is singled out for punitive action. Tomorrow it may be another developing country. As all of us are aware, judgement of observance or non-observance of labour standards are, more often than not, subjective and arbitrary and, in some instances, even politically-motivated.

In the case of Myanmar, the problem arose from the arbitrary judgement, based on misinformation. This misinformation emanates from elements, opposed to the Myanmar Government, insurgent groups and self-proclaimed workers' organizations which are more politically-motivated than dedicated to promoting the interests of workers. One such dubious workers' organization has only a handful of members, who represent no one but themselves.

Mr. Chairman,

It is the sadder and the more deplorable, because the proponents of the draft decision to apply sanctions to Myanmar completely ignore the concrete and positive measures, taken by the Myanmar Government.

They turn a blind eye to the comprehensive, concrete and solid framework of legislative, executive and administrative measures put in place in Myanmar and the offer by the Myanmar Government to receive an ILO representative, based in the ILO Regional Office in Bangkok or in Geneva, to assist the national supervisory mechanism in the implementation of the ILC's recommendation.

Notwithstanding the more prudent approach, advocated by many of its Member States, the Governing Body has chosen the path of confrontation and coercion by applying sanctions under Article 33. The ASEAN Member States, together with like-minded countries, have expressed reservations against the action taken by the Governing Body. Myanmar appreciates the principled stands, taken by those countries that Article 33 of the ILO Constitution should never be invoked and that, sanctions should not be applied to a Member State.

Mr. Chairman,

It is most regrettable that a drastic decision, contrary to what many members believe in and uphold, was taken by the Governing Body. It is obvious that this unwarranted and unjustified action by the Governing Body is aimed at exerting pressure on Myanmar.

The decision, just taken by the Governing Body, will no doubt place the credibility, the integrity and the reputation of the Governing Body and the ILO in question. It penalizes a Member State which has been voluntarily cooperating with the ILO and has put in place the comprehensive, concrete and solid framework of legislative, executive and administrative measures in accordance with the ILC's resolution.

This action by the Governing Body is most unfair, most unreasonable and most unjust.

This decision is totally unacceptable to my delegation.

For these reasons, my delegation totally and categorically rejects the decision and dissociates itself from it and any activities and effects connected with it.

As such, Myanmar will cease to cooperate with the International Labour Organization in relation to the ILO Convention 29 and any activity connected with it.

I thank you, Mr. Chairman.

Appendix 2

Resumé of the concrete measures taken by the Myanmar Government (Endnote 7)

-- Since the 88th Session of the ILC which adopted the resolution on Myanmar, the following steps have been taken to put in place a framework of legislative, executive and administrative measures to comply with the ILC resolution.

-- Initially, intensive consultations were made among all departments and agencies concerned regarding the measures needed to fulfil the conclusions of the report of the Technical Cooperation Mission (TCM) and the ILC resolution.

-- An independent study group headed by Baron Walter von Marschall, former Ambassador of FRG to Myanmar was invited to have an independent opinion of what constitutes the satisfactory measures regarding the framework that the LC resolution referred to. The group visited Myanmar from 25 September to 6 October, 2000 and gave various options which in their opinion would satisfy the required measures mentioned in the ILC resolution.

-- In addition, at the invitation of the Government of Myanmar, a five-member Technical Cooperation Mission (TCM) visited Myanmar from 20 to 26 October, 2000. Based on the advices and suggestions of the TCM, a new legislative order was issued on 27 October 2000. The order made it clear that the requisition of forced labour or involuntary services is illegal and is an offence under the existing laws of the Union of Myanmar. It also spells out the consequences for the breach of the legislative order by explicitly spelling out that any one, including the members of the armed forces shall have action taken against him under Section 374 of the Penal Code or any other existing laws. In the words of the TCM, this order has general applicability.

-- This Order was supplemented by a directive from the State Peace and Development Council (SPDC), the highest organ of state power in Myanmar. The SPDC is the legislative authority, and as the TCM has pointed out, the highest military authority and the highest civilian authority in the country. This document, TCM pointed out "provides confirmation that there is political will at the highest level to reach a solution".

-- Apart from this legislative measure, concrete and detailed framework of administrative and executive measures have been instituted.

-- This consists of the Ministerial Committee headed by the Minister of Labour and the Implementation Committee on Convention 29 as well as a national supervisory mechanism for monitoring compliance.

-- Myanmar has thus put in place a concrete, comprehensive and solid framework of legislative, administrative and executive measures to ensure that there is no forced labour both in law and in practice.

-- With regard to the ILO presence, Myanmar is also willing to accept an ILO representative, either based in the Regional Office in Bangkok or based in Geneva, to observe, assess or assist the national supervisory mechanism in the implementation of Convention 29. The representative of ILO will be given full cooperation to effectively carry out his responsibilities. The representative will enjoy, for these purposes and for the duration of his mission, the same legal protection and status accorded to officials of comparable rank in the United Nations. The representative, either based in the ILO Regional Office in Bangkok or in Geneva, may make frequent visits to Myanmar, as the need arises.

-- In view of this concrete, comprehensive and solid framework of legislative and executive measures and Myanmar's willingness to address the issue of the ILO presence, the actions envisaged by the ILC are no longer required and necessary. The Members of the Governing Body ought to take the necessary decision so that the measures envisaged by the ILC will not come into effect on 30 November 2000.

Appendix 3

Communication dated 22 December 2000 from the Director-General to the Minister for Labour of the Government of Myanmar

Dear Mr. Minister,

I write concerning the action taken by the Governing Body on 16 November, at its 278th Session, with respect to the effect given by the Government of Myanmar to the recommendations of the Commission of Inquiry concerning the application of Convention No. 29. The Governing Body had before it on this occasion the report of the second ILO technical cooperation mission to Myanmar, which visited your country from 20 to 26 October.

While some of the positive developments reflected in the report of the technical cooperation mission and in subsequent documents provided by the authorities were acknowledged, the Governing Body was, as you know, not satisfied, that the conditions for the non-implementation of the measures listed in paragraph 1 of the Conference resolution had been met. These measures are taking effect on 30 November, and I have notified ILO Members and international organizations concerned accordingly, as contemplated in the relevant paragraph of the resolution.

At the same time, the strong sense of the Governing Body was, as noted by the Chair, that the Director-General should continue to extend cooperation to the Government of Myanmar in order to promote the full implementation by that Government of the recommendations of the Commission of Inquiry. This conclusion is indeed in line with the mandate I have received from the Conference itself.

The Governing Body debate underlined once more that the ILO's objective has always been, and remains, the implementation of the recommendations of the Commission of Inquiry. It is thus my sincere hope that the measures now in force will soon become unnecessary as a result of your Government's full application of these recommendations.

In that connection, I have noted that, according to a statement issued shortly after the debate by the Ministry of Foreign Affairs, Myanmar intends to adhere to and implement the positive measures taken at the end of the technical cooperation mission visit. Let me assure you that, for its part, the Office stands ready to extend its cooperation for the purposes of ensuring the implementation of the recommendations of the Commission of Inquiry in such a way that positive and credible developments could already be reported to the Governing Body at its next session.

Yours sincerely,

(Signed) Juan Somavia.

Appendix 4

Communication dated 11 February 2001 from the Government of Myanmar to the Director-General forwarded by the Permanent Mission of Myanmar

Excellency,

I received your letter of 22 December 2000 in which you were kind enough to inform that your office stands ready to extend cooperation to Myanmar.

Myanmar had received two Technical Cooperation Missions from ILO in our efforts to make our domestic legislation fully in line with Convention 29. With the assistance of the Technical Cooperation Mission which visited Myanmar from 20 to 26 October 2000, we had put in place a framework of legislative, executive and administrative measures to make forced labour illegal both in law and in practice. But powerful forces in the ILO Governing Body totally ignored the concrete measures taken by Myanmar as well as its demonstrated desire to cooperate with ILO. I regret to say that the way things were conducted at the 279th Session of the Governing Body was a grave travesty of the rules of procedure of the ILO. As a result, the proposal put forward by Malaysia on behalf of ASEAN countries, supported by India and China, to defer Implementation of the measures in ILC resolution on Myanmar was not put to a vote. The Governing Body's discussions on the matter, therefore, ended inconclusively. This has led to the entry into force of the measures envisaged in the ILC resolution. This is a great injustice on Myanmar, which had in good faith implemented its obligations under Convention 29.

However, we are resolute in our endeavours to implement the framework of legislative, executive and administrative measures which we have put in place. The Committee for implementation of Convention 29 is holding its regular meetings to review the situation. The national monitoring mechanism which we have put in place is also functioning smoothly. There had been a few cases where the latest legislative order was breached. These cases were investigated and necessary legal action was taken against the perpetrators.

I wish to thank you for your readiness to extend cooperation to Myanmar. I fully realize that our national efforts that involved ILO would receive better acceptance by our detractors.

However, under the present circumstances, until such time that Myanmar receives fair and equitable treatment that must necessarily be accorded to all members of the ILO, we must ourselves continue our national efforts for the total elimination of practice of force labour in Myanmar.

I wish to assure you that we will continue to take steps to ensure that forced labour is illegal in Myanmar both in law and in practice. I also wish to assure that we will resolutely implement the framework of legislative, executive and administrative measures we have put in place.

Yours sincerely,

(Signed) Major General Tin Ngwe,

Minister for Labour,

Union of Myanmar.

Appendix 5

Communication dated 1 March 2001 from the Director-General to the Minister for Labour of the Government of Myanmar

Dear Mr. Minister,

I acknowledge receipt of your letter dated 11 February 2001 in reply to mine of 22 December 2000, and would like to offer the following comments.

As regards the second paragraph of your letter, I can assure you that your views, as well as the text of the statement which your Ambassador intended to make and which reached the Chairman's Office after the closure of the session, will be reflected appropriately in the documentation before the next session of the Governing Body.

I have taken note of your statement that Myanmar is "resolute in our endeavours to implement the framework of legislative, executive and administrative measures which we have put in place" with a view to the total elimination of the practice of forced labour in Myanmar, and in particular of the information that some action has already been taken against the perpetrators of such practices.

However it is clear that Myanmar cannot expect to receive credit for these endeavours in the absence of an objective assessment of their practical implementation and actual impact. The ILO alone is in a position to provide such an assessment with the authority necessary to carry legal, practical and political consequences at the international level. This is all the more relevant in the light of the continuing flow of information from various sources concerning the issues in question.

For these reasons I would like to reiterate that the Office stands ready to engage in discussions about the possible format and modalities such an objective assessment could take. In my view, it would be highly desirable that such discussions take place before the next session of the Governing Body. It should be recalled that the International Labour Conference will, in accordance with paragraph 1(a) of its resolution, review the situation at its next session in June, on the basis of all relevant information then available.

Yours sincerely,

(Signed) Juan Somavia.

Appendix 6

Resolution adopted by the International Labour Conference at its 88th Session (June 2000)

The International Labour Conference,

Meeting at its 88th Session in Geneva from 30 May to 15 June 2000,

Considering the proposals by the Governing Body which are before it, under the eighth item of its agenda (Provisional Record No. 4), with a view to the adoption, under article 33 of the ILO Constitution, of action to secure compliance with the recommendations of the Commission of Inquiry established to examine the observance by Myanmar of its obligations in respect of the Forced Labour Convention, 1930 (No. 29),

Having taken note of the additional information contained in the report of the ILO technical cooperation mission sent to Yangon from 23 to 27 May 2000 (Provisional Record No. 8) and, in particular, of the letter dated 27 May 2000 from the Minister of Labour to the Director-General, which resulted from the mission,

Considering that, while this letter contains aspects which seem to reflect a welcome intention on the part of the Myanmar authorities to take measures to give effect to the recommendations of the Commission of Inquiry, the factual situation on which the recommendations of the Governing Body were based has nevertheless remained unchanged to date,

Believing that the Conference cannot, without failing in its responsibilities to the workers subjected to various forms of forced or compulsory labour, abstain from the immediate application of the measures recommended by the Governing Body unless the Myanmar authorities promptly take concrete action to adopt the necessary framework for implementing the Commission of Inquiry's recommendations, thereby ensuring that the situation of the said workers will be remedied more expeditiously and under more satisfactory conditions for all concerned;

1. Approves in principle, subject to the conditions stated in paragraph 2 below, the actions recommended by the Governing Body, namely:

(a) to decide that the question of the implementation of the Commission of Inquiry's recommendations and of the application of Convention No. 29 by Myanmar should be discussed at future sessions of the International Labour Conference, at a sitting of the Committee on the Application of Standards specially set aside for the purpose, so long as this Member has not been shown to have fulfilled its obligations;

(b) to recommend to the Organization's constituents as a whole - governments, employers and workers - that they: (i) review, in the light of the conclusions of the Commission of Inquiry, the relations that they may have with the member State concerned and take appropriate measures to ensure that the said Member cannot take advantage of such relations to perpetuate or extend the system of forced or compulsory labour referred to by the Commission of Inquiry, and to contribute as far as possible to the implementation of its recommendations; and (ii) report back in due course and at appropriate intervals to the Governing Body;

(c) as regards international organizations, to invite the Director-General: (i) to inform the international organizations referred to in article 12, paragraph 1, of the Constitution of the Member's failure to comply; (ii) to call on the relevant bodies of these organizations to reconsider, within their terms of reference and in the light of the conclusions of the Commission of Inquiry, any cooperation they may be engaged in with the Member concerned and, if appropriate, to cease as soon as possible any activity that could have the effect of directly or indirectly abetting the practice of forced or compulsory labour;

(d) regarding the United Nations specifically, to invite the Director-General to request the Economic and Social Council (ECOSOC) to place an item on the agenda of its July 2001 session concerning the failure of Myanmar to implement the recommendations contained in the report of the Commission of Inquiry and seeking the adoption of recommendations directed by ECOSOC or by the General Assembly, or by both, to governments and to other specialized agencies and including requests similar to those proposed in paragraphs (b) and (c) above;

(e) to invite the Director-General to submit to the Governing Body, in the appropriate manner and at suitable intervals, a periodic report on the outcome of the measures set out in paragraphs (c) and (d) above, and to inform the international organizations concerned of any developments in the implementation by Myanmar of the recommendations of the Commission of Inquiry;

2. Decides that those measures will take effect on 30 November 2000 unless, before that date, the Governing Body is satisfied that the intentions expressed by the Minister of Labour of Myanmar in his letter dated 27 May have been translated into a framework of legislative, executive and administrative measures that are sufficiently concrete and detailed to demonstrate that the recommendations of the Commission of Inquiry have been fulfilled and therefore render the implementation of one or more of these measures inappropriate;

3. Authorizes the Director-General to respond positively to all requests by Myanmar that are made with the sole purpose of establishing, before the above deadline, the framework mentioned in the conclusions of the ILO technical cooperation mission (points (i), (ii) and (iii), page 8/11 of Provisional Record No. 8), supported by a sustained ILO presence on the spot if the Governing Body confirms that the conditions are met for such presence to be truly useful and effective.

Appendix 7

Recommendations of the Commission of Inquiry (extracts)

In paragraph 539 of its report, the Commission of Inquiry urged the Government to take the necessary steps to ensure:

(a) that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Forced Labour Convention, 1930 (No. 29) as already requested by the Committee of Experts on the Application of Conventions and Recommendations and promised by the Government for over 30 years, and again announced in the Government's observations on the complaint. This should be done without further delay and completed at the very latest by 1 May 1999;

(b) that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military. This is all the more important since the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or Towns Act. Thus, besides amending the legislation, concrete action needs to be taken immediately for each and every of the many fields of forced labour examined in Chapters 12 and 13 (of the Commission's report) to stop the present practice. This must not be done by secret directives, which are against the rule of law and have been ineffective, but through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. Also, action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required;

(c) that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced, in conformity with Article 25 of the Convention. This requires thorough investigation, prosecution and adequate punishment of those found guilty. As pointed out in 1994 by the Governing Body committee set up to consider the representation made by the ICFTU under article 24 of the ILO Constitution, alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), the penal prosecution of those resorting to coercion appeared all the more important since the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government's statements to the committee, was all the more likely to occur in actual recruitment by local or military officials. The power to impose compulsory labour will not cease to be taken for granted unless those used to exercising it are actually brought to face criminal responsibility. (Endnote 8)

Appendix 8

Observations from the CEACR (2001 Report)

Myanmar (ratification: 1955)

1. The Committee notes that the Government has not supplied a report on the application of the Convention. Following the recommendations of the Commission of Inquiry established to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), the Committee has, however, taken note of the following information:

-- the information presented by the Government to the Director-General of the ILO in communications dated 21 January, 20 March, 27 May, 29 October (as supplemented subsequently), and 3, 15 and 17 November 2000;

-- the information submitted to, and the discussions held in, the Governing Body of the ILO at its 277th and 279th Sessions in March and November 2000;

-- the information and discussion at the International Labour Conference at its 88th Session (May-June 2000);

-- the resolution adopted by the International Labour Conference at its 88th Session concerning the measures recommended by the Governing Body under article 33 of the ILO Constitution on the subject of Myanmar to secure compliance with the recommendations of the Commission of Inquiry, and the entry into effect of those measures on 30 November 2000, following consideration of the matter by the Governing Body at its 279th Session (November 2000);

-- the resolutions adopted by the General Assembly of the United Nations at its 54th Session (17 December 1999) and by the United Nations Commission on Human Rights at its 56th Session (March-April 2000) on the situation of human rights in Myanmar (extracts in International Labour Conference, 88th Session, Geneva, 2000, Provisional Record No. 4, Annex III);

-- the second report of the Director-General of the ILO to the members of the Governing Body on measures taken by the Government of Myanmar, dated 25 February 2000;

-- the interim report prepared by judge Rajsoomer Lallah, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, dated 22 August 2000 ((UN document A/55/359); and the note by the Secretary-General of the United Nations on the same subject, dated 20 October 2000 (UN document A/55/509);

-- the reports of the ILO technical cooperation missions to Myanmar of May 2000 ((ILC, 88th Session, Geneva, 2000, Provisional Record No. 8) and October 2000 (GB.279/6/1 and Add.1);

-- a communication dated 15 November 2000 in which the International Confederation of Free Trade Unions submitted to the ILO voluminous documentation referring to the imposition of forced labour in Myanmar during the period June-November 2000, a copy of which was sent to the Government for such comments as it may wish to present;

-- a press release issued on 17 November 2000 by the Ministry of Foreign Affairs of the Union of Myanmar in Yangon, and an information sheet issued by the Myanmar Information Committee in Yangon on a press conference held on 18 November 2000 by the Government on the decision of the ILO Governing Body to activate measures on the subject of Myanmar.

2. Information available on the observance of the Convention by the Government of Myanmar will be discussed in three parts, dealing with: (i) the amendment of legislation; (ii) any measures taken by the Government to stop the exaction in practice of forced or compulsory labour and information available on actual practice; (iii) the enforcement of penalties which may be imposed under the Penal Code for the exaction of forced or compulsory labour.

I. Amendment of legislation

3. In paragraph 470 of its report of 2 July 1998, the Commission of Inquiry noted:

... that section 11(d), read together with section 8(1)(g), (n) and (o) of the Village Act, as well as section 9(b) of the Towns Act provide for the exaction of work or services from any person residing in a village tract or in a town ward, that is, work or services for which the said person has not offered himself or herself voluntary, and that failure to comply with a requisition made under section 11(d) of the Village Act or section 9(b) of the Towns Act is punishable with penal sanctions under section 12 of the Village Act or section 9(a) of the Towns Act. Thus, these Acts provide for the exaction of "forced or compulsory labour" within the definition of Article 2(1) of the Convention.

The Commission of Inquiry further noted that the wide powers to requisition labour and services under these provisions do not come under any of the exceptions listed in Article 2, paragraph 2, of the Convention and are entirely incompatible with the Convention. Recalling that the amendment of these provisions had been promised by the Government for over 30 years, the Commission urged the Government to take the necessary steps to ensure that the Village Act and the Towns Act be brought into line with the Convention without further delay, and at the very latest by 1 May 1999 (paragraph 539(a) of the Commission's report).

4. In its previous observation, the Committee noted that by the end of November 1999, neither the Village Act nor the Towns Act had been amended, nor had any draft law proposed or under consideration for that purpose been brought to the knowledge of the Committee. However, an "Order Directing Not to Exercise Powers Under Certain Provisions of the Town Act, 1907 and the Village Act, 1907" (No. 1/99) was issued by the Government on 14 May 1999, which in fact still reserved the exercise of powers under the relevant provisions of the Village Act and the Towns Act which remain incompatible with the requirements of the Convention.

5. The Committee notes from the report of the October 2000 ILO technical cooperation mission to Myanmar (GB.279/6/1, paragraphs 9 and 10, Annexes 13 and 19) that a draft text providing for the amendment of the Village Act and the Towns Act through an amendment of Order No. 1/99 was not retained by the Government. However, the same report (in Annex 19) reproduces the English text of an "Order Supplementary Order No. 1/99" made by the Ministry of Home Affairs under the direction of the State Peace and Development Council on 27 October 2000 which modifies Order No. 1/99 so as to order "responsible persons including members of the local authorities, members of the armed forces" etc. "not to requisition work or service notwithstanding anything contained" in the relevant sections of the Towns and Village Acts, except in cases of emergency as defined in Article 2(2)(d) of the Convention (GB.279/6/1, Annex 19). The Burmese text of this Order of 27 October, which was to be published in the Myanmar Gazette, has not yet been supplied to the ILO.

6. The Committee observes that the amendment of the Village and Towns Acts sought by the Commission of Inquiry as well as the present Committee and promised by the Government for many years has not yet been made. It again expresses the hope that the Village Act and the Towns Act will at last be brought into conformity with the Convention.

7. The Committee nevertheless notes that Order No. 1/99 as supplemented by the Order of 27 October 2000 could provide a statutory basis for ensuring compliance with the Convention in practice, if given effect bona fide not only by the local authorities empowered to requisition labour under the Village and Towns Acts, but also by civilian and military officers entitled to call on the assistance of local authorities under the Acts. This, in the view of the Committee, calls for further measures to be undertaken, as indicated by the Commission of Inquiry in its recommendations in paragraph 539(b) of its report.

II. Measures to stop the exaction in practice of forced or compulsory labour and information available on actual practice

A. Measures to stop the exaction in practice of forced or compulsory labour

8. In its recommendations in paragraph 539(b) of its report of July 1998, the Commission of Inquiry indicated that steps to ensure that in actual practice no more forced or compulsory labour be imposed by the authorities, in particular the military, were:

... all the more important since the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or Towns Act. Thus, besides amending the legislation, concrete action needs to be taken immediately for each and every of the many fields of forced labour examined in Chapters 12 and 13 (of the Commission's report) to stop the present practice. This must not be done by secret directives, which are against the rule of law and have been ineffective, but through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. Also, action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required ... .

9. The Committee notes from the report of the October 2000 ILO technical cooperation mission to Myanmar, the suggestion made by the mission of a Supplementary Order or directive from the Office of the Chairman of the State Peace and Development Council concerning requisition of labour or services (GB.279/6/1, Annex 13). The suggested text was to order all state authorities, including military, police and civilian authorities and their officers, not to requisition persons to provide labour or services for any purpose, nor to order others to requisition such labour or services, regardless of whether or not payment is made for said labour or services, except in cases of emergency as defined in Article 2(2)(d) of the Convention. The suggested prohibition was to include but not be limited to the requisition of labour or services for the following purposes:

(a) portering for the military (or other military/paramilitary groups, for military campaigns or regular patrols);

(b) construction or repair of military camps/facilities;

(c) other support for camps (such as guides, messengers, cooks, cleaners, etc.);

(d) income generation by individuals or groups (including work in army-owned agricultural and industrial projects);

(e) national or local infrastructure projects (including roads, railways, dams, etc.);

(f) cleaning/beautification of rural or urban areas.

Similar prohibitions were to apply to the requisition of materials or provisions of any kind and to demands of money except where due to the State or to a municipal or town committee under relevant legislation. Furthermore, the suggested text was to provide that if any state authority or its officers requires labour, services, materials or provisions of any kind and for any purpose, they must make prior budgetary arrangements to obtain these by a public tender process or by providing market rates to persons wishing to supply these services, materials or provisions voluntarily, or wishing to offer their labour.

10. The Committee notes that the text suggested by the mission was not adopted, but that the English versions of several instructions dated 27 and 28 October 2000 and 1 November 2000 were forwarded to the ILO after the departure of the mission and reproduced in addenda to the mission's report (GB.279/6/1(Add.1)(Rev.1) and (Add.2)).

11. The instruction dated 27 October 2000 "Prohibiting Requisition of Forced Labour" is signed for the Director-General of the Police Force and addressed to all units of the police force. The instruction dated 28 October 2000 on the same subject is addressed by the Director-General of the General Administration Department of the Ministry of Home Affairs to all State/Divisional Commissioners and General Administration Departments and requires, inter alia, Order No. 1/99 and the order supplementing it to be displayed separately on noticeboards of all the levels of peace and development councils as well as the General Administration Departments.

12. The instruction dated 1 November 2000 "Prohibiting Requisition of Forced Labour" is signed at the highest level, by Secretary-1 of the State Peace and Development Council, and addressed to the Chairmen of all State and Divisional Peace and Development Councils. The latter instruction thus reaches beyond institutions that come under the authority of the Ministry of Home Affairs. It is, however, primarily directed to the enforcement of Order No. 1/99 and the Order of 27 October 2000 supplementing it, which are limited in scope to the requisition of forced labour under the Village Act and the Towns Act, i.e. not by civilian or military state officers but by local authorities, who may requisition labour under the Acts when called upon to provide assistance to civilian and military state officers. Nevertheless, the instruction dated 1 November interprets the Supplementing Order of 27 October 2000 as follows:

2. ... The Supplementing Order renders the requisition of forced labour illegal and stipulates that it is an offence under the existing laws of the Union of Myanmar. Responsible persons, including the local authorities, members of the armed forces, members of the police force and other public service personnel are also prohibited not to requisition forced labour and are instructed to supervise so that there shall be no forced labour.

It would appear to the Committee that a bona fide application of this prohibition should cover the typical case of members of the armed forces who order local authorities to provide labourers, even if the manner of complying with such order - through requisition or hiring of labourers or otherwise - is left to the local authorities.

13. The instruction dated 1 November 2000 continues as follows:

3. Therefore, it is hereby directed that the state and divisional peace and development councils shall issue necessary instructions to the relevant district and township peace and development councils to strictly abide by the prohibitions contained in Order No. 1/99 and the Supplementing Order of the Ministry of Home Affairs and also to effectively supervise to ensure that there shall be no forced labour within their respective jurisdictions.

4. Responsible persons, including members of the local authorities, members of the armed forces, members of the police force and other public service personnel who fail to abide by the said Order No. 1/99 and the Supplementing Order shall be prosecuted under section 374 of the Penal Code or any other existing laws.

It would appear to the Committee that again, as set out in paragraph 12 above, a bone fide application of the instruction would include, in the scope of point 4 of the instruction, members of the armed forces who order local authorities to supply labour.

14. It remains to be seen whether the "necessary instructions" yet to be issued by the state and divisional peace and development councils under point 3 of the instruction of 1 November will contain the kind of details necessary for a feasible implementation. Such details were set out by the Commission of Inquiry in paragraph 539(b) of its report and included by the October 2000 technical cooperation mission in its suggestion mentioned in paragraph 9 above.

15. The three instructions forwarded so far to the ILO do not yet contain any positive indication on the manner in which authorities that have been used to rely on forced and unpaid labour contributions of the population are hereafter to make realistic provision for the labour and services they may require.

16. Furthermore, the three instructions do not spell out the various forms of forced labour found by the Commission of Inquiry and this Committee to be mainly imposed in practice, as listed in paragraph 9 above. In this regard, the Committee recalls that most of the forms of forced labour or services requisitioned concerned the military. The Committee notes that "members of the armed forces" are specifically included among the responsible persons listed in point 4 of the instruction dated 1 November 2000 (quoted in paragraph 13 above). However, in point 3 of the same instruction, the order to issue the necessary further - and, hopefully, more detailed - instructions is addressed to the state and divisional peace and development councils (which in fact include officers of the armed forces), but not to the regional commanders of the armed forces in their military capacity.

17. In the absence of specific and concrete instructions to the civilian and military authorities containing a description of the various forms and manners of exaction of forced labour, the application of the provisions adopted so far turns upon the interpretation in practice of the notion of "forced labour". This cannot be taken for granted, as shown by the various Burmese terms used sometimes when labour was exacted from the population - including "loh ah pay", "voluntary" or "donated" labour. The need for clarity on the point is underscored by the Government's recurrent attempts to link the pervasive exaction of labour and services by mainly military authorities to merit which may be gained in the Buddhist religion from spontaneously offered help. The Commission of Inquiry recalled in paragraph 539(c) of its report that "the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government's statements" was "all the more likely to occur in actual recruitment by local or military officials".

18. Thus, clear instructions are still required to indicate to all officials concerned, including officers at all levels of the armed forces, both the kinds of tasks for which the requisition of labour is prohibited, and the manner in which the same tasks are henceforth to be performed. The Committee hopes that the necessary detailed instructions will soon be issued, and that, in the words of paragraph 539(b) of the Commission of Inquiry's report, provision will also be made for "the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour".

B. Information available on actual practice

(a) The practice August 1998 to December 1999

19. In his reports dated 21 May 1999 and 25 February 2000 to the members of the Governing Body, the Director-General indicated that all information on actual practice that was received (from workers' and employers' organizations, intergovernmental organizations and governments of member States of the ILO) in reply to his requests, referred to continued widespread use of forced labour by the authorities, in particular by the military.

(b) Information on the practice up to November 2000

20. In its communication dated 15 November 2000, the ICFTU refers to the persistence of severe breaches of the Convention by the military authorities. Documentary appendices enclosed by the ICFTU represent over 1,000 pages drawn from over 20 different sources and include reports, interviews of victims; over 300 forced labour orders, photographs, video recordings and other material. A few events described therein took place in the first half of the year 2000; an overwhelmingly large proportion of the documents concerns the period June to November 2000.

21. An essential part of the ICFTU submission consists of hundreds of "forced labour orders", issued mainly by the army but also by armed groups under its control and elements of the local administration. As stated by the ICFTU, these are similar in kind, shape and contents to the orders already examined by the Commission of Inquiry and the regular ILO supervisory mechanisms and found by same to be authentic. Documentary materials submitted refer to the persistence on a large scale of forced portering, including by women, and the murder of forced porters no longer able to carry their burden. In addition to forced portering, all other forced labour practices identified previously by the Commission of Inquiry are referred to for the period June to November 2000. A great number of specific reported instances include forced labour for the building and maintenance of roads, bridges, railroads, water canals, dikes, dams and reservoirs, as well as for the building, repair, maintenance and servicing of army camps; and the requisition of labour as well as seeds, fertilizer, materials and equipment for army-held agricultural land, forests and installations.

22. As indicated above, copies of the ICFTU communication of 15 November 2000, including the voluminous documentation submitted, were sent to the Government for such comments as it may wish to present.

III. Enforcement

23. In paragraph 539(c) of its recommendations the Commission of Inquiry urged the Government to take the necessary steps to ensure:

... that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced labour or compulsory labour be strictly enforced, in conformity with Article 25 of the Convention. This requires thorough investigation, prosecution and adequate punishment of those found guilty.

24. In practice, no action whatsoever under section 374 of the Penal Code has so far been brought to the knowledge of the Committee.

25. The Committee notes that point 4 of the instruction dated 1 November 2000 from the State Peace and Development Council to All State and Divisional Peace and Development Councils, reproduced in paragraph 13, provides for the prosecution of "responsible persons" under section 374 of the Penal Code. Similar clauses are included in point 3 of the instruction dated 27 October, and point 6 of the instruction dated 28 October, referred to in paragraph 11 above. Moreover, under points 4 to 6 of the instruction dated 27 October 2000, addressed by the Director-General of the Police Force to all units of the police force:

4. If any affected person files a verbal or written complaint to the police station of having been forced to contribute labour, the latter shall record the complaint in Forms A and B of the police station and send the accused for prosecution under section 374 of the Penal Code.

5. It is hereby directed that the police stations and units concerned at various levels shall be further instructed to make sure their strict compliance with the said Order as well as to supervise so that there shall be no requisition of forced labour. A copy of the Order Supplementing Order No. 1/99 issued by the Ministry of Home Affairs on 27 October 2000 is enclosed herewith.

6. It is instructed to acknowledge receipt of this directive and to report back actions taken on the matter.

26. With regard to point 4 of the latter instruction (dated 27 October 2000) the Committee hopes that prosecutions under section 374 of the Penal Code will be brought by the law enforcement agencies on their own initiative, without waiting for complaints by the victims, who may not consider it expedient to denounce the "responsible persons" to the police. The Committee hopes that in commenting on indications that the imposition of forced labour has continued beyond October 2000, the Government will also report on any concrete action taken under section 374 of the Penal Code.

27. The Committee has noted the assurance, in the Government's letter dated 29 October 2000 to the Director-General of the ILO, of the "political will to ensure that there is no forced labour in Myanmar, both in law and in practice". It also has taken due note of the Order Supplementing Order No. 1/99 and the three instructions issued between 27 October and 1 November 2000, and of the view of the Employer members of the Governing Body at its 279th Session (November 2000) that this was "too little too late". At a press conference held 18 November 2000 in Yangon on the decision of the Governing Body of the ILO to activate measures on the subject of Myanmar, the Government indicated that it would no longer cooperate with the ILO in relation to the Forced Labour Convention, 1930 (No. 29), but that it would continue to take steps to prevent forced labour, as this was its policy. The Committee hopes that the Government will thus at last take the necessary measures to ensure the observance in law as well as in practice of the Convention, a basic human rights instrument freely ratified by Myanmar. It also hopes that the Government, which had failed to take part in the proceedings before the Commission of Inquiry, will avail itself of the opportunity to present its views and progress in reporting on the application of the Convention, in conformity with its obligations under article 22 of the ILO Constitution.

(The Government is asked to report in detail in 2001.)

Appendix 9

Note on UNHCR's activities in Myanmar and compulsory labour

UNHCR has been operational in two districts of Myanmar since 1994 in facilitating repatriation and reintegration of approximately 230,000 Muslim returnees from Bangladesh into Northern Rakhine State. The activities of UNHCR are geared towards reintegration and stabilization of some 800,000 Muslim population including returnees in Maungdaw and Buthiadaung districts. UNHCR and its implementing partners provide assistance activities under various key sectors with the aim to improve and stabilize the social and economic environment in Northern Rakhine State. UNCHR conducts field monitoring of a number of protection issues affecting the Muslim population including forced labour, and is promoting a more secure legal status for this population. As regards compulsory labour, UNHCR undertakes advocacy against its use, in particular through dialogue and engagement with officials at the local level.

Areas of intervention

Agriculture

Considering the chronic rice deficit in the area of operation, efforts to increase the production of rice are a given high priority. WFP's past assistance has helped to ease the shortage of rice. Dams and dykes will also be constructed to produce a second rice crop to targeted areas in three townships. At the same time, livestock and aquaculture projects, combined with training courses to enhance the capacity building of the local population are taking place. There is no recourse to compulsory labour in this field of activities and any labour needed for construction purpose is contracted out or paid for as appropriate.

Health

UNHCR recognizes that good health and physical well-being constitute an integral part of any economic and social stability. Compared to other parts of Myanmar, the area of UNHCR's operation is characterized by its remoteness, rough geographical terrain, dense population, and the low literacy rate. These factors contribute to the apparent non-accessibility and underutilization of existing services, which are manifested in the high infant and maternal morbidity and morality, and high prevalence of malnutrition, malaria, tuberculosis and diarrhoeal diseases. These health challenges are further complicated by the under-equipped and under-staffed health facilities.

UNHCR started its health assistance projects in 1995. It invested not only in upgrading government health facilities, but also in strengthening the conventional health delivery system by improving its planning and management functions, targeting an immediate impact at grass-roots community level to introduce changes in health service provision and utilization. This strategy allows focusing on advocating integrated participatory development initiatives, which link health to education, training, income generation, environmental sanitation and other related sectors.

Health activities make the population more productive in life. Poor health leads the population to poverty as they cannot be economically viable. In this sector, there is no resort to compulsory labour.

Education

UNHCR attempts, through a variety of educational undertakings, to strengthen the links between and among the returnee population, the local Muslim residents and other communities in Northern Rakhine State. This is based on the understanding that education helps returnees' awareness. Education activities help the illiterate population to be literate increasing their coping mechanism including their communication with the authorities as well as non-Muslim community. In general it helps them to be more viable in various functions of life. There is no use of compulsory labour in this sector of activities.

Income generation

Considering that majority of the poorest of the poor - returnees and locals alike - are landless, casual labourers, UNHCR endeavours to promote among them, income-earning activities. Positive effects have been frequently reported in terms of an increased level of self-sufficiency which also resulted in affected family sending more children to schools for education.

The objective of these activities is to help them settle and integrate in the area, attain self-sufficiency, and be able to find their niches within the local economy. To meet this objective, an extensive programme providing financial assistance, training and agriculture activities has been implemented since 1995. For example, the population in general have more money than before. In view of no taxation, villagers are expected to contribute to the development of Northern Rakhine State. In the past this was seen as a direct contribution of labour, so called compulsory or even forced labour. Now more villagers can afford paying a small amount of contribution in money so that if there is a need to fix a bridge the money they contribute could be used to hire casual labourers.

Rural infrastructure

Aside from the ongoing work of construction school jetties, health centres, ponds, wells, dams, etc., UNHCR, BAJ and the Government of the Union of Myanmar are working together to develop a permanent road link from Maungdaw township to the southernmost point of Maungdaw with the ultimate goal of a road link from Maungdaw to Sittwe. This important artery will accelerate the development of the area, creating new economic opportunities as well as providing immediate assistance in the form of training and cash for work as well as food for work (WFP) to the poorest villagers along the route. In undertaking construction activities, UNHCR and BAJ have ensured that all labour is appropriately compensated, including through food for work programmes.

Additionally, infrastructure activities have a direct effect. By building bridges and improving infrastructure in general, there is less demand for compulsory labour.

Community social services

It is estimated that up to 10 per cent of returnee population falls under the category of Extremely Vulnerable Individuals (EVIs). These are the female-headed households, widows, orphans, physically or mentally disabled or elderly. Some 7,213 EVIs have been identified and various agencies, including UNHCR, are actively targeting these groups for assistance recognizing that inadequate social services and opportunities for self-reliance exist. The ultimate goal is to identify and implement interventions that will help these individuals and their families attain self-sufficiency. Myanmar Red Cross Society (MRCS) is actively implementing training and assistance activities in this sector, as UNHCR's implementing partner.

Community Social Service helps EVIs who are not subject to compulsory labour any way to be self-reliant. It also encourages community participation including their obligation and responsibility to the community. In some instances, this transforms potentially "compulsory labour" into "voluntary community work". UNHCR encourages this trend as after all, villagers have to maintain what UNHCR built for the general development of the society.

On top of all the activities mentioned above which are interrelated, UNHCR is doing general advocacy, i.e. sensitizing the authorities not to impose compulsory labour. The important point is UNHCR has nothing to do with "abetting" the practice of compulsory labour, but on the contrary, it has been striving to reduce the frequency of forced labour and to promote payment for labour.

Conclusion

It is UNHCR's observation that, due in part to its advocacy efforts, there has been a decreasing trend in compulsory labour practices over the past years. There has been improvement to the situation in terms of the frequency of labour calls, the number of labourers required as well as the number of days of labour. There also appears to have been more attempts made to pay labourers for their work in money or in kind, although the amounts paid are usually far below market rate. Nonetheless, it is also observed that compulsory labour practices are continuing in areas where there is heavy military presence and where porterage is required by the military. UNHCR plans to maintain its presence and activities in the area to consolidate the progress made. Its humanitarian activities are intended to curtail practices such as forced labour.

21 December 2000.

Appendix 10

Note on UNDP's activities in Myanmar in the context of the ILO resolution

Background

Since 1993, United Nations Development Programme (UNDP) assistance to Myanmar has been provided under the framework of the UNDP Governing Council's decision 93/21 of June 1993 which stipulates that "assistance from the United Nations Development Programme and related funds to Myanmar should be clearly targeted towards programmes having grass-roots level impact in a sustainable manner, particularly in the areas of primary health care, the environment, HIV/AIDS, training and education, and food security". Consequently, a set of individual projects known as the Human Development Initiative, or HDI, has been implemented since 1994.

In January 1996 and again in July 1998, the above mandate 93/21 was reaffirmed by the successor body to the Governing Council, the UNDP Executive Board, in its decision No. 96/01 and No. 98/14 respectively.

The HDI has three overarching objectives:

-- helping communities to meet their basic humanitarian needs;

-- involving local people in planning and implementing activities that will benefit them; and

-- building local capacities for self-help activities.

While the UNDP Country office and the HDI projects and their executing agencies continually seek to improve and refine the HDI's outreach and benefits, the Governing Council and Executive Board decisions continue to provide the parameters within which all HDI activities are planned, implemented and evaluated.

Today, 11 projects work in an integrated manner with each other and with grass-roots communities to meet basic needs and alleviate poverty in 23 townships with over 10,000 community groups and organizations in the Dry Zone, the Ayeyarwaddy Delta, and the Shan, Chin, Kachin and Rakhine States in Myanmar. An exception is the HIV/AIDS project, which covers areas with high prevalence of HIV across the country. The HDI is now in its third phase, which will end in 2001.

Project specific analysis

Three of the 11 HDI projects focus on agriculture and food security. They aim at helping poor farmers and the landless improve their production and increase their incomes from forestry, agriculture, aquaculture and livestock. They are implemented by the Food and Agriculture Organization of the United Nations (FAO) in the Dry Zone, the Shan State and the Delta.

The primary health care project aims to help local people meet their own primary health care needs, and to improve their access to basic health services. It focuses on the major threats of malaria, leprosy, iodine deficiency and tuberculosis. It trains midwives and auxiliary workers, and promotes family planning. This project is executed by the United Nations Office for Project Services (UNOPS).

The community water supply and sanitation project builds water-supply systems for villages that lack a supply of clean water and that often have no water at all in the dry season. It also improves sanitation, for example by promoting simple pit-latrines, and helps people build small bridges and other facilities that they themselves identify. This project is managed by the United Nations Center for Human Settlements (UNCHS).

The HIV/AIDS project, implemented by UNOPS, educates people to avoid infection by the deadly AIDS virus, and how to care for people who have the disease. It targets groups at greatest risk of infection: commercial sex workers and their clients, transport and mineworkers, fisher-folk and refugees.

The primary education project aims to improve the access to and the quality of primary education, for example by building and renovating schools in deprived areas, loaning textbooks to the neediest children, and by training teachers. The project also works to bring literacy through non-formal education activities to children and adults who cannot attend regular school classes. This project is executed by the United Nations Educational, Scientific and Cultural Organization (UNESCO).

The micro-finance project loans small amounts of money to villagers to help them build small businesses. The implementation of this project is subcontracted to non-governmental organizations (NGOs): Private Agencies Collaborating Together (PACT) in the Dry Zones, Groupe de Recherche et d'Echanges Technologiques (GRET) in the Shan State, and Grameen Trust in the Delta. This project is managed by the United Nations Office for Project Services (UNOPS).

The remote townships project provides integrated community development services (encompassing social development, income generation and local capacity building in agriculture, health, education, water supplies and credit) in ten townships - in Rakhine, Kachin and Chin States. This project is executed by the United Nations Office for Project Services (UNOPS).

The HDI Support project provides operational and technical support for the HDI projects. It also undertakes key activities including social mobilization and integrated development planning and management.

Finally, a preparatory assistance project is laying the groundwork for a Basic Needs Assistance Programme in Northern Rakhine State.

HDI project activities and compulsory labour

HDI projects, both by design and practice, are neither physical inputs-driven nor construction-oriented. Conceptually, HDI relies more on "software" improvements than hardware improvement of the local rural communities at the grass-roots level.

The limited physical improvements supported by the projects (e.g. renovation and construction of rudimentary village basic health care centres, small water-supply systems such as water ponds, hand-dug wells, rain-water collection tanks, community learning centres and primary schools, village access roads and small bamboo/wooden bridges, farm level soil conservation bunds, gulley-plugs, community woodlot nurseries, etc.) are invariably small in size, limited in scope, demonstrative in purpose and focused directly at serving a specific community only. HDI projects support and facilitate these activities as strategic entry points to initiate social mobilization of the rural communities concerned.

Both in theory and practice, the HDI approach is basically antithema to compulsion. HDI is strictly based on voluntary participation. All HDI activities by design are planned, implemented, monitored, operated and maintained by the beneficiary communities themselves. If there are any inputs, willing and able to be contributed by the beneficiaries, the type, quantity and nature of these are proposed and decided by consensus of the concerned community. HDI thus inculcates a more sustainable community development approach based on voluntarism as an alternative to non-voluntary administrative method of implementing development activities.

Thus, if and when HDI projects assist activities which could involve some construction and earth work where labour inputs might be called upon, the nature of the labour contribution (amount, timing, mode of remuneration, etc.) must be proposed, discussed, agreed upon and monitored by the concerned communities themselves, all strictly on voluntary basis. HDI projects never force (and the projects have no authority to force) the communities to contribute any inputs (including labour) in any of its activities.

In response to the EB mandate, HDI was designed to implement its project activities through UN Executing Agencies and not through or with the government line departments. Government institutions concerned, from central to the village level, are informed of what HDI is doing. Decision-making authority, however, is strictly with the project management which is not shared with the Government. HDI projects are implemented through their own separate, independent channels managed by their own project staff, down to the community beneficiaries level and not through any existing government bureaucracy.

As required by the successive EB mandates, regular assessments by independent missions have been made on HDI performance. The EB in its decision 98/14 requested the Administrator, to continue to provide the Board, on an annual basis, with a report on the progress and challenges in the implementation of HDI project activities. In compliance with this request, the latest independent assessment and evaluation mission was fielded during the period 27 May through 15 July of 2000. After reviewing the extensive documentation on each of the 11 HDI projects and visiting selected project villages, including extensive consultation with village beneficiaries in these project areas, the mission concluded that "the content and objectives of all HDI projects were in full conformity with the relevant provisions of the Governing Board and Executive Council decisions".

Conclusion

In light of the above analysis we firmly believe that the ongoing HDI project activities (the only UNDP-funded programme in the country) do not and could not have the effect of directly or indirectly abetting the practice of forced or compulsory labour in Myanmar.

Appendix 11

International ICFTU/ICFTU-APRO/ITS Conference

The global unions' Plan of Action on Burma (adopted in Tokyo on 1 March 2001)

1. Strengthen material support to the FTUB.

2. Strengthen implementation of the ILO Burma resolution of June 2000, including:

-- review of your government's bilateral relations with junta;

-- support holding of special Burma session during the International Labour Conference, 2001;

-- support inclusion of this issues at the next session of the United Nations Economic, Social and Cultural Committee;

-- seek consultations on Burma measures with your government under the ILO Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144);

-- seek improved coordination of United Nations specialized agencies and programmes so that they do not in practice aid or abet forced labour.

3. Increase pressure on international financial institutions (IFTs) with the same purpose.

4. Lobby European Union presidency and Member States to further strengthen existing Burma sanctions, in cooperation with the ETUC.

5. Lobby ASEAN member States to help bring about an end to forced labour and the establishment of democracy.

6. Seek early discussions with companies maintaining business relations with Burma in order that they withdraw trade and investments in Burma, or alternatively face public exposure, union-driven consumer pressure and boycotts.

7. Expand and strengthen workers' shareholder action against companies trading with or operating in Burma.

8. Better inform rank-and-file membership, as well as the wider community, about the situation.

9. Organize an International Day of Union Action for Burma on 1 May 2001 and use the occasion, in cooperation with civic and religious group, NGOs and others to:

-- lobby governments;

-- pressure companies;

-- create public awareness;

-- target Burmese embassies;

-- link the Burma situation with the ILO Declaration on Fundamental Principles and Rights at Work.

10. Keep the Burma Plan of Action on union agendas and inform your membership of progress.

GB.280/6 (Add.1)

SIXTH ITEM ON THE AGENDA

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

Addendum

1. Since document GB.280/6 was finalized, the Office has received a number of additional communications from member States, national employers' and workers' organizations, an international organization, and a non-governmental organization. To enable the Governing Body to get as complete a picture as possible, these communications are summarized below.

2. The Government of Canada indicated that copies of the Conference resolution had been sent to Canadian provincial and territorial governments and to national workers' and employers' organizations. The Government had also sent a letter to major Canadian business associations informing them of the Conference resolution and Canadian policies with respect to Myanmar. In 1988 Canada suspended diplomatic and commercial relations with Myanmar, along with support for Canadian firms doing business in the country, including export programmes and commercial promotion. Support for multilateral assistance through international financial institutions was also withdrawn, and bilateral aid was suspended. In August 1997, the Canadian Government had announced selective economic measures against Myanmar, which remain in force. These include withdrawal of trade preferences and the introduction of export controls that effectively limit exports to those of a humanitarian nature. The Government also issued a statement urging the Canadian business community to refrain from entering into further investment agreements or commercial ventures in Myanmar until improvements were evident.

3. The Government of Japan communicated the following points via its Permanent Mission. The relationship between Japan and Myanmar did not contain any element that contributed directly or indirectly to forced labour in Myanmar, nor did any development assistance do so. Japan hoped that an early solution would be attained on the question of forced labour in Myanmar, and that a constructive dialogue towards that objective between the Government of Myanmar and the ILO would start soon.

4. The Government of New Zealand indicated that it had recently reviewed the country's bilateral relationship with Myanmar and no element of that relationship had been identified that would perpetuate or extend the system of forced labour in Myanmar. The Government intended to keep the relationship under review. It had forwarded copies of the Conference resolution to the New Zealand Council of Trade Unions and the New Zealand Employers' Federation.

5. The Government of Portugal indicated that its trade with Myanmar took place within the framework of the WTO and the EU. It was difficult within the framework of the WTO to take measures against another member State for violations of fundamental worker rights. The EU had suspended Myanmar from its system of trade preferences because of the forced labour situation. The EU continued to observe the situation in Myanmar with concern, and would discuss the question of forced labour in Myanmar and the Conference resolution at a meeting of the EU Council in March.

6. The Government of Belgium indicated that although its bilateral relations with Myanmar were extremely limited, it had invited ministers of departments having relations with the country to examine measures that could be taken in support of the ILO action and to prevent these relations being used to maintain the system of forced labour. The possibilities for economic sanctions were limited because bilateral trade was minor, and also because trade policy was mainly handled at the EU level. In July last year, the Government of Belgium had communicated to the president of an oil company its strong reservations regarding the policy followed by that company, which pursued its goals without taking account of the situation in Myanmar. For ethical reasons, the Government had ended a contract for the supply of fuel with the same company. It had also introduced an ethical clause preventing suppliers to the Belgian State from carrying out activities in countries that were guilty of certain human rights violations, although the introduction of this clause had yet to be approved by the European Commission. The Government gave its assurances that during its next term as president of the EU, later this year, the EU's position would be carefully examined in the light of the situation on the ground in Myanmar.

7. The Government of Kuwait stated that it had no direct or indirect cooperation with the Government of Myanmar, and indicated that it had communicated the Conference resolution to its employers' and workers' organizations. The Government of the Seychelles indicated that it was studying the situation and would revert in due course.

8. The Dutch trade union federation Federatie Nederlandse Vakbeweging (FNV) indicated that it had no relations with the regime in Myanmar. It had requested the Dutch Government to provide it with information on Dutch companies with trading interests in Myanmar, on the total value of trade between the two countries, as well as details of imports which may have been made with the use of forced labour. Further action would be taken on the basis of an analysis of this information, as soon as it is received. The federation had also requested the Dutch Government to develop concrete proposals for a review of its own and/or EU relations with Myanmar on the occasion of the next EU discussion round on these relations. It had asked the Dutch Government to inform it of such proposals, with whom it would discuss them if appropriate.

9. The Fiji Trades Union Congress indicated that it supported the ICFTU position, but did not have any further information to provide at this stage.

10. The All Pakistan Federation of Trade Unions indicated that it had urged the Government of Pakistan to implement the spirit of the Conference resolution, and had circulated the resolution widely to the news media in order to inform public opinion about the situation in Myanmar.

11. The Swedish Employers' Confederation indicated that the content and implications of the Conference resolution had been discussed at a meeting of the South-East Asia advisory board of the International Council of Swedish Industry. The Confederation's full membership of 45,000 companies had been informed via its newsletter of its support for the Conference resolution, and companies that had any commercial relations with Myanmar were asked to review these relations. The International Council of Swedish Industry had communicated the content of the Conference resolution to relevant associations of companies.

12. The United Nations Industrial Development Organization indicated that in reference to its activities in Myanmar it was not aware of any non-compliance with the Conference resolution.

13. The non-governmental organization Images Asia, which had provided a representative to testify before the Commission of Inquiry at its formal hearing of witnesses and which had cooperated closely with the Commission's visit to the region in 1998, transmitted a report dated 3 March 2001 on forced labour in the Rakhine state of Myanmar. The report referred to the situation in northern Rakhine state in December 2000. The report indicated that orders to stop the use of forced labour had been transmitted by the Government of Myanmar to the civilian authorities in the state, and village leaders had been requested to organize mass public meetings to announce the change in policy. Such information had also been placed on official notice boards, and it had been declared that neither civilian nor military authorities were entitled to demand compulsory labour, and that in case of non-compliance complaints should be filed with the Court, which would take appropriate action. The report claimed, however, that the Myanmar military, especially local battalions, were showing no willingness to implement these instructions. The military was continuing to requisition labour under threat of "dire consequences". As a result, while there had been a temporary reduction in labour demands in some areas, this was only slight, and there were allegations that it had been accompanied by an increase in extortion and arbitrary taxation.

Geneva, 22 March 2001.

GB.280/6 (Add.2)

SIXTH ITEM ON THE AGENDA

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

Addendum 2

Measures taken by the Organization's constituents

Measures taken by member States

1. In a letter dated 14 March 2001, the Government of Mexico stated that bilateral trade and political dialogue with the Government of Myanmar were minimal and that there were no bilateral mechanisms, legal instruments or cooperation projects under way or in the process of being negotiated between Mexico and Myanmar. The Government had communicated the recommendations contained in the Conference resolution to the country's most representative employers' and workers' organizations. Of these, the Confederation of Workers of Mexico had begun trade union action on this matter through its representative in the ILO Governing Body.

Geneva, 27 March 2001.

GB.280/PV

D. Provisional minutes of the discussion of this item

(Subject to approval by the Governing Body at its 282nd (November 2001) Session.)

Governing Body

Provisional minutes of the 280th Session

()

SECONG SITTING

Extract

Wednesday, 28 March 2001, morning

The sitting opened at 10.50 a.m., with Mr. Amorim in the Chair.

Sixth item on the agenda

DEVELOPMENTS CONCERNING THE QUESTION OF THE OBSERVANCE BY THE GOVERNMENT OF MYANMAR OF THE FORCED LABOUR CONVENTION, 1930 (NO. 29)

The Chairperson recalled that, at its 279th Session (November 2000), the Governing Body had concluded that the conditions set out in paragraph 2 of the Conference resolution of June 2000 concerning the Government of Myanmar's observance of Convention No. 29 had not been fulfilled and consequently the provisions of paragraph 1 of that resolution would come into effect on 30 November 2000. At the same time, it had decided that the channels of cooperation between the ILO and the Government of Myanmar should be kept open. The Director-General had subsequently taken the necessary steps to set these provisions in motion.

The Governing Body now had before it a report presenting the latest developments in this case as regards the Government of Myanmar, as well as measures taken by the ILO's constituents and by various international organizations. This document included 11 appendices setting out detailed elements and was accompanied by two additional papers which contained further information received since then from governments and employers' and workers' organizations.

In paragraph 67 of the main paper, the Governing Body was invited to request the Director-General to transmit the paper to the Conference Committee on the Application of Standards, which would consider this item in June 2001, together with the record of the Governing Body's own discussions and any other pertinent information.

The Director-General observed that the replies received from the ILO's constituents demonstrated that the request contained in the Conference resolution had led several governments to review very thoroughly their relations with Myanmar in consultation with employers' and workers' organizations, and in some cases this review had paid special attention to the situation of companies operating in Myanmar. However, while some governments had reported concrete measures and several trade unions had pressed for boycotts, the response to the Conference resolution generally reflected a wait-and-see attitude.

In accordance with the conclusions reached by the Governing Body in November 2000 and in line with the mandate conferred by the Conference, the Office had been authorized to extend its cooperation to the Government of Myanmar in order to promote the full implementation by the latter of the Commission of Inquiry's recommendations. In line with that mandate and despite the position of non-cooperation expressed by the Ministry of Foreign Affairs of Myanmar, the speaker had written to the Minister of Labour on 22 December 2000. While the Minister's reply of 11 February 2001 had generally confirmed an attitude of non-cooperation, it had at the same time emphasized action taken to enforce the legislative, executive and administrative measures announced, including action against perpetrators of violations. In his letter of 1 March 2001, the speaker had pointed out that Myanmar could not expect any acknowledgement for these actions unless there was an objective assessment of their practical implementation and actual input which the ILO was alone in a position to provide. Following this letter, the Deputy Foreign Minister of Myanmar had requested a meeting with the Director-General.

On the clear understanding that this meeting was intended as a positive response to his letter of March, the speaker had received the Deputy Foreign Minister on 22 March and a very frank and direct discussion had ensued. His own objective had been to ascertain whether the Myanmar Government was prepared to have an objective assessment made by the ILO of the concrete impact that the measures announced had had on the actual situation of forced labour in the country. Regarding the actual modalities, he had stressed that they would have to be of such a nature as to guarantee the objectivity and relevance of the outcome. He had likewise emphasized the urgency of the matter in view of the discussions due to take place at the Conference in June 2001. On that basis, the Deputy Minister's visit had confirmed the authorities' willingness to engage in early discussions for an objective assessment of the various measures adopted by the authorities at the end of 2000.

The ultimate significance of this exchange would depend on whether, and how soon, agreement was reached on the modalities of the objective assessment and this would show whether one was moving in a positive direction or towards an impasse. He intended to keep the Officers of the Governing Body closely associated with the progress of those discussions or their termination, as the case might be.

Mr. Brett (Worker, United Kingdom; Worker Vice-Chairperson) thanked the Director-General for his full report. However, the wait-and-see attitude among the ILO's constituents should, as far as the Workers were concerned, more aptly be described as a mood of expectancy. The Workers expected that the unprecedented recourse to article 33 of the ILO Constitution would have induced the Burmese authorities to see the logic of cooperating with the ILO in the fulfilment of their obligations. Their second expectation was that, if the Burmese Government failed to do so, the international community would take appropriate action to bring about compliance. It had been made very clear at the time that article 33 was not a provision to be invoked lightly, nor was this an attempt to put in the dock a government which had persistently refused to comply with its obligations under Convention No. 29, but it was a serious indictment of a government which had failed to comply with its obligations over a long period of time. After a policy of consistent denial that any forced labour existed in Burma, the Minister of Labour's letter of 21 February 2001 in fact amounted to an admission that forced labour had existed and continued to be practised in the country. While the Government now admitted to a few isolated cases of breaches of the legislation and stated that action had been taken against perpetrators of such violations, it had supplied no precise information in this respect. Reports from NGOs and the international trade union indicated, on the contrary, that widespread use of forced labour continued in Burma. Against this background, it was highly disappointing that the Minister of Labour had brushed aside the offer of ILO assistance on the pretext that the Government was perfectly capable of taking he necessary measures without outside assistance. On the contrary, it was essential, in the interests both of the ILO and the Government of Burma, that any measures taken to eradicate forced labour be duly verified by an impartial outside body. Until this occurred, there was no way of ascertaining what progress, if any, was achieved towards this goal. The Director-General's statement in his letter of 1 March that the ILO alone was in a position to provide such an assessment "with the authority necessary to carry legal, practical and political consequences at the international level" constituted very sound advice which the Government of Burma should heed carefully.

As regards opinion within Burma, paragraphs 48 and 49 of the paper made reference to an "open letter regarding ILO decision on Myanmar in Myanmar" purported to emanate from 18 million workers employed by public and private enterprises and an open letter bearing the same title and date from the "International Business Community". These communications not only stretched the bounds of credibility, but also suggested a high degree of coercion in obtaining those signatures.

It was also disappointing that a number of member States had been extremely vague in their replies as to the efforts they might envisage. He stressed that the Conference resolution called upon member States to take appropriate action to ensure that the Burmese authorities did not take advantage of their relations with other States to perpetuate or extend the system of forced labour. No doubt some of this wait-and-see policy had been influenced by reports that the Burmese military junta had recently engaged in secret talks with the democratic opposition leader. However desirable a return to democracy might be, this was not the issue now before the Governing Body, which was a very simple one, i.e. to bring about an end to forced labour, which was a violation of a basic ILO Convention.

A number of trade unions had responded in a very concrete manner. In particular, the ICFTU - which represented some 200 million workers throughout the world - had at a meeting in Tokyo adopted a global plan of action on Burma which set out a number of concrete steps aimed at persuading governments, business circles and international bodies to take action steps towards the cessation of forced labour in Burma. In this connection, it was disappointing that the United Nations and other international organizations had not applied themselves seriously to this situation and had merely taken note of the ILO's communication. It was also not acceptable that governments which in the ILO had supported the enforcement of measures under article 33 failed to speak up on this issue in other international bodies. The Workers supported the Director-General's proposal to place the question on the agenda of ECOSOC at its July 2001 meeting. It was to be hoped that all this would help to create a climate in which the Government of Burma would see the need to act and to restore some measure of credibility by involving the ILO in validating the process. The Workers would in any case pursue their campaign until the Government of Burma complied with its obligations.

Mr. Thüsing (Employer, Germany; Employer Vice-Chairperson) considered that it would not be helpful to exacerbate the situation further by exaggerated statements or gestures. The Conference had decided in June 2000 that certain measures should be implemented in pursuance of article 33 of the ILO Constitution and in November 2000 the Governing Body had not been able to conclude that anything had occurred in the meanwhile that would warrant not implementing these measures. The Employers believed that this decision, while unfortunate, had been the right one in the circumstances. An existing situation could only change if new elements came into play, and in this case a new element could only arise when, on the basis of an objective assessment carried out by the Office, the Conference or Governing Body received a report that would enable them to conclude that the situation had changed in a positive direction. It was therefore necessary to wait for such a positive development and all parties concerned should work together with good will to achieve this objective.

Ms. Adler (Government, Denmark) took the floor on behalf of the governments of the European Union (EU), as well as the governments of Central and Eastern Europe associated with the EU. The associated countries Cyprus, Malta and Turkey as well as Croatia and Norway had also expressed the wish to align themselves with this statement.

The European Union had supported the ILC resolution adopted in June 2000 and had welcomed the entry into force of the measures recommended by that resolution on 30 November 2000 because it felt deep concern about the situation of forced labour in Burma, as reflected in the replies sent by EU Member States and the European Commission to the Director-General's letter of 22 December 2000.

In 1997 the ILO Commission of Inquiry had made clear recommendations to the Government of Burma, to the effect that: the national legislation be brought into line with ILO Convention No. 29; that no more forced or compulsory labour be imposed by the authorities in practice; and that persons who imposed forced labour should face penal sanctions. These recommendations were still valid and Burma needed to comply fully with them.

In November 2000, the Government of Burma had started to take some measures addressing the problem and had in particular adopted certain legislative measures, according to the ILO mission report. However, as regards implementation measures and their follow-up, developments were much less evident. The EU was concerned about continued reports of the use of forced labour in Burma.

Burma had since informed the Office that it would continue its own efforts towards the elimination of forced labour - which was in itself encouraging - but without ILO cooperation - which was regrettable. In order for the ILC to lift the measures it had decided on, it needed to be assured that forced labour was eliminated completely in Burma, and only the ILO could provide such information. The European Union therefore urged Burma to resume its cooperation with the ILO and to allow a full-time ILO presence in the country in order to assist the Government to put a definitive and verifiable end to the practice of forced labour. If Burma did make sufficient progress by the time of the ILO Conference in June 2001, Members might wish to consider what further steps might be taken.

Mr. Spring (Government, United States) noted that, in his letter of 22 December 2000, the Director-General had reiterated the ILO's readiness to help the Government of Burma implement the recommendations of the Commission of Inquiry. This was in keeping with the terms of the June 2000 Conference resolution and the discussion of the resolution by the Governing Body in November 2000. While it was disappointing that the Government of Burma had not accepted the ILO's offer of assistance, that offer still stood.

In his letter of 1 March 2001, the Director-General had stated that the ILO alone was in a position to provide an objective and authoritative assessment of the Government's implementation of the Commission of Inquiry's recommendations. While agreeing with that statement, the speaker cautioned that, in the absence of democratic reforms in Burma, the practical ability of an ILO presence there to assure that forced labour had been eliminated nationwide was problematic. Under these circumstances, such a presence might erode, rather that enhance, the credibility of the ILO.

The Office paper provided discouraging evidence that the practice of forced labour continued in Burma. Government and military officials at all levels were reported to have taken measures to conceal the practice, and to weaken or nullify the effects of the orders that the Government had submitted to the Governing Body in November 2000 as evidence of its determination to eliminate forced labour. Moreover, a campaign of propaganda and disinformation had been launched to try to counter the measures foreseen by the Conference resolution. Tens of thousands of people, including women, children and elderly persons, were reported to have been pressed into forced labour in the short period of time since November 2000. He fully endorsed the proposal in paragraph 67 that the Director-General transmit this document to the Conference for discussion in June 2001.

In January 2001, the international community had generally welcomed the announcement of the opening of dialogue between the Government of Burma and the democratic opposition. More than two months later, it was still waiting for signs that this represented a genuine effort at achieving national reconciliation and at making concrete progress towards ending human rights abuses. Forced labour was unlikely to end in Burma as long as democratic government was denied. The United States Government was in favour of giving this dialogue a chance to succeed. However, if no genuine progress was achieved, it was prepared to consider additional measures to respond to the Conference decision.

Mr. Haraguchi (Government, Japan) observed that, according to the ILO mission report submitted to the Governing Body in November 2000, the Government of Myanmar had unquestionably taken various legislative and administrative measures towards the eradication of forced labour. While it still remained to be seen how these measures would be implemented, it should be recognized that some progress had been made, and the Government of Myanmar should be given every encouragement to move forward rapidly in the desired direction. The speaker continued to believe that this was the valid approach in order to bring about the desired results in a smooth manner.

He commended the Office for its efforts to re-establish dialogue and cooperation with the Government of Myanmar. For its part, the Government of Japan had been in touch with the Government of Myanmar at various levels, both formally and informally, to impress upon the latter the need to cooperate with the ILO, and in particular to involve the ILO in the objective assessment of the measures introduced. His own Government would continue its efforts, and it hoped that it would be possible for all concerned to work together resolutely so that those efforts would be fully rewarded as early as possible.

Mr. Chung (Government, Republic of Korea) reported that his Government had transmitted the Conference resolution to the major employers' and workers' organizations in the Republic of Korea and had requested them to take appropriate measures to implement the recommendations and review their relations with Myanmar, if necessary. His Government would inform the ILO of any further developments in this connection. It hoped that an early solution to the problem would be obtained through a combination of technical assistance from the international community, including the ILO, and more active efforts on the part of the Government of Myanmar.

Mr. Mladlana (Government, South Africa) expressed appreciation for the manner in which the ILO's constituents had reacted to the decisions adopted by the Governing Body and expressed solidarity with the workers of Myanmar in their struggle against forced labour. His Government firmly supported the maintenance of these measures as long as Myanmar remained intransigent and unwilling to desist from the despicable behaviour which had prompted those measures. In the context of justice and respect for human rights, workers' rights should be upheld as an integral part of human rights. He called upon the ILO to sustain the measures imposed upon the Government of Myanmar while at the same time intensifying its efforts aimed at assisting that Government to adopt a course of action that would result in upholding the fundamental principles of natural justice.

Mr. Rimkunas (Government, Lithuania) fully endorsed the statement made on behalf of the governments of the European Union. At the same time, he welcomed the efforts undertaken by the Government of Myanmar to eliminate forced labour, which should be pursued in close cooperation with the ILO.

Mr. Hendrasmoro (Government, Indonesia) emphasized that his Government did not condone any practices in Myanmar that abetted or encouraged the practice of forced labour as described by the ILO's Commission of Inquiry. However, it also firmly believed that promotional measures and cooperation were far more preferable to sanctions in addressing this issue. Indeed, punitive measures had repeatedly proved ineffective in securing the observance of any ILO Convention or Recommendation and merely created divisions and conflicts within the Organization.

He therefore welcomed the fact that the channels of communication between the Director-General and the Government of Myanmar had been kept open. These exchanges denoted that the ILO and the Government of Myanmar both understood the importance of maintaining opportunities for dialogue and cooperation in addressing this problem. He commended the Director-General for his readiness to cooperate with the Government of Myanmar for the purposes of ensuring the implementation of the recommendations of the Commission of Inquiry.

The Government of Indonesia was encouraged by the assurances given by the Government of Myanmar that it would continue its efforts to eradicate forced labour and enact legislation making this practice illegal. He believed that if the framework of measures put in place by that Government were implemented, there would be a marked improvement in Myanmar's record on the issue of forced labour.

Mr. Vaish (Government, India) stressed that his Government had always been strongly opposed to the practice of forced labour and believed that countries voluntarily adhering to ILO Conventions should apply them. At the same time, it had consistently emphasized that the ILO's objectives could best be promoted through dialogue and technical cooperation and not through punitive measures or threat of their use. It had therefore advocated constructive dialogue and technical assistance between the ILO and the Government of Myanmar. Strongly believing in the virtues of dialogue and persuasion, the Government of India commended the Director-General for the recommencement of dialogue with the Government of Myanmar and wished him every success in these efforts.

The speaker noted from paragraph 4 of the Office paper that informed 59 international organizations, including the IMF, the World Bank and the WTO, regarding the issue under consideration. It was his own understanding that this communication should have been sent only to those organizations with which the ILO had established relations under article 12(1) of the Constitution and with the approval of the Governing Body. He therefore requested the Office to explain the criteria used for selecting the organizations to which this information had been circulated. It was important that these criteria be entirely clear so that there could be no scope for any controversy or confusion on this point in the future.

The representative of the Director-General (Mr. Tapiola, Deputy Director-General) pointed out that article 12(1) of the Constitution, which provided that the ILO "shall cooperate within the terms of this Constitution with ... public international organizations having specialized responsibilities in related fields", did not limit such cooperation to organizations with which the ILO had concluded specific agreements. In the present case, the information had been sent to all the international organizations invited to the International Labour Conference and the ILO's regional conferences and meetings.

The Chairperson observed that the only action which the Governing Body was now called upon to take was to request the Director-General to transmit the Office report to the Conference Committee on the Application of Standards, as proposed in paragraph 67. No disagreement with that proposal had been expressed by anybody. During the debate, a good deal of emphasis had been placed in the question of assessment and verification and he encouraged the Director-General to pursue that line. This would probably be one of the crucial aspects to be examined at the Conference.

Mr. Brett (Worker, United Kingdom; Worker Vice-Chairperson) assumed that the report that would be transmitted to the Conference would be an updated version of the document taking into account any further developments taking place between now and the opening of the Conference.

The Workers had noted from the replies of some governments that the latter had merely transmitted the Director-General's communication to the national employers' and workers' organizations, expecting them to take the necessary action. This appeared to reflect a basic misunderstanding on their part. While it was of course desirable for the social partners to be involved in any collective or individual action taken on this issue, the Conference resolution placed the primary responsibility on governments for reviewing their relations with Myanmar and taking concrete measures. He would therefore welcome hearing from the governments concerned that they were themselves taking action and not merely presuming that action would be taken only by the employers' and workers' organizations.

The Governing Body took note of the report and addenda 1 and 2. It requested the Director-General to transmit to the Conference Committee on the Application of Standards the report together with the record of its consideration, as well as any further information of relevance for its discussion. The Conference Committee would have before it the report of the CEACR together with any other relevant information.

C. App./D.7

E. Developments since the 280th Session of the Governing Body (March 2001): Arrangements for an objective assessment of the situation of forced labour following measures taken by the Myanmar Government

(Mission to Yangon, 17-19 May 2001)

Introduction

While considering that the conditions had not been met for the provisions contained in the Conference resolution of June 2000 to be rendered inappropriate, the Governing Body noted during its 279th Session in November 2000 that the Director-General should continue to extend cooperation to the Government of Myanmar in order to promote full implementation of the recommendations of the Commission of Inquiry.

During its 280th Session in March 2001, the Director-General informed the Governing Body, in opening the discussion on the report concerning the implementation of the measures decided by the Conference (GB.280/6), of the efforts which he had undertaken with the Myanmar authorities in order to fulfil the second aspect of his responsibilities. In his letter of 1 March 2001 to the Minister for Labour (Appendix 1), he had expressed the view that the Myanmar authorities could not expect to receive any recognition for the framework of measures and subsequent action which they said they had taken, in the absence of an objective assessment by the ILO of their practical implementation and actual impact on the forced labour situation. Following that letter, he had received a visit from the Deputy Minister for Foreign Affairs, Mr. Khin Maung Win, on 22 March 2001. During a very frank discussion, the Deputy Minister had indicated that the authorities were disposed to enter quickly into discussions on the modalities of an objective assessment.

That information was received with interest, and the Governing Body decided that any further developments should be reflected in the report to be submitted to the Conference Committee on the Application of Standards at its meeting in 2001, in accordance with paragraph 1(a) of the resolution adopted in June 2000. The present report follows up that decision. Its purpose is to set out the developments that have taken place since the Governing Body's last session, and in particular to give an account of the origin and results of the mission which visited Yangon between 17 and 19 May 2001 in order to decide on the modalities for an objective assessment of the implementation and impact of the framework of measures put in place from October 2000 onwards.

Origin of the mission

During a meeting with the Director-General on 22 March 2001, Mr. Khin Maung Win had said that the Permanent Representative of Myanmar in Geneva, Ambassador U Mya Than, would be appointed to undertake discussions with the Office regarding the modalities of the objective assessment. During those preliminary discussions, it soon became clear that it was not realistic to expect the two successive stages of the implementation process (agreement on modalities and, in the case of such agreement being reached, the carrying out of the assessment itself) could be undertaken before the Conference, given the logistical constraints and the deadlines associated with the second stage. The parties therefore set a target of reaching a clear and firm commitment from the authorities regarding the modalities of such an assessment before the International Labour Conference, on the understanding that such a commitment would be followed up as soon as possible by the assessment itself, so that the Governing Body could be informed of the results during its November 2001 session. The letter of the Minister for Labour dated 26 April 2001 (Appendix 2) and the Director-General's reply of 10 May 2001 (Appendix 3) are the two principal reference points in the development of discussions on that subject.

It followed from the Director-General's letter of 10 May that, in order to finalize the modalities in question and obtain before the Conference a specific and definitive commitment based on parameters previously discussed with the Ambassador (concerning issues such as who would carry out the assessment, when it would begin and how long it would last, and what practical and legal guarantees would be provided for it), discussions would have to be held in Yangon with all the ministries concerned.

It was for this reason that a new mission visited Yangon between 17 and 19 May 2001. Its members were as follows:

-- Mr. Francis Maupain, representative of the Director-General;

-- Mr. Dominick Devlin, Legal Adviser;

-- Mr. Rueben Dudley, Deputy Director, ILO Regional Office for Asia and the Pacific;

-- Mr. Richard Horsey, Secretary.

Progress and findings of the mission

The mission, like the previous ones, attracted a degree of interest among the diplomatic community in Yangon and among the United Nations agencies. In order to respond to that interest, and despite the limited time available, the mission was anxious to organize a number of information sessions, with the assistance of the United Nations Resident Coordinator. The mission's detailed programme is given in Appendix 4.

During the first working session following the mission's arrival in Yangon, the representatives of the various ministries concerned informed the mission that they had taken a number of measures since the adoption of the new framework of legislative, executive and administrative measures. To illustrate those efforts, the Secretary of the "Implementation Committee for Convention No. 29", U Soe Nyunt, drew attention to action which had been taken to publicize those measures as well as to the visits that had been organized to different parts of the country in order to examine the realities of the situation in the light of previous allegations.

The mission emphasized that the purpose of its present visit was quite different from that of the previous missions. The purpose was not to re-examine the substantive issues dealt with in the report of the Commission of Inquiry. Neither was it the purpose of the visit to set up a new Commission of Inquiry, although the Government was free to request such a step under article 34 of the ILO Constitution. As the Director-General had made clear in his letter of 1 March and in his presentation to the Governing Body in March, the purpose of the objective assessment now being considered was more specific: it was to assess the practical implementation of the legislative, executive and administrative framework that had been put in place and its actual impact on the forced labour situation in the country.

The mission drew attention to the fact that the Committee of Experts on the Application of Conventions and Recommendations had discussed the framework of measures at its previous meeting in December 2000, and its observation in its report to the Conference provided some valuable indications as to the points to be considered when the objective assessment was undertaken. The Committee of Experts, while expressing regret that the views of the October 2000 Technical Cooperation Mission had not been fully taken into account, nevertheless noted that the legislative measures adopted "could provide a statutory basis for ensuring compliance with the Convention in practice, if given effect bona fide not only by the local authorities empowered to requisition labour under the Village and Towns Acts, but also by civilian and military officers entitled to call on the assistance of local authorities under the Acts". With that in mind, the Committee had given a number of indications regarding further measures that could be undertaken (Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), 2001, page 149).

The object and scope of the assessment being thus delineated, the mission emphasized that the modalities were of necessity dictated by the nature of the task: they had to provide every possible guarantee that the assessment would be objective and credible. The members of the High-Level Team (HLT) responsible for the assessment would therefore have to be appointed by the Director-General solely on the basis of their recognized impartiality, experience and technical competence including knowledge of the region; the duration of the HLT's visit should be sufficient to allow it to form an opinion, while recognizing the possible constraints as regards the availability of the HLT's members; and finally, the HLT needed to be allowed complete discretion with regard to the organization of its programme of activities and meetings. The mission expressed the hope that those parameters could be translated into a specific text during the course of the visit.

Those basic considerations led to discussions during which the mission drew up an initial draft "Understanding". That in turn gave rise to numerous proposed amendments and counter amendments until quite late in the afternoon of Saturday, 19 May. Two main difficulties had to be faced. The first concerned the appointment by the Director-General of the members of the HLT, which the authorities wished to be subject to their prior approval. That demand was not accepted. It was, however, made clear that the expression "recognized qualifications" used in point I of the text implied that the qualifications required of members of the HLT would have to be recognized by all, including the Myanmar authorities; that interpretation was subsequently confirmed in writing, at the latter's request. The second difficulty related to the discretion of the HLT to determine the programme which it regarded as necessary for conducting the assessment. The solution that was adopted acknowledged that that discretion could be limited by considerations of security - including the security of members of the HLT itself - but stipulated that those considerations must be "valid"; it also provided for a mechanism to overcome any difficulties that might arise in that regard, namely, the possible assistance of an independent "facilitator" recognized as knowledgeable and fair by all parties concerned. On that basis, the full text of an "Understanding" was finally agreed.

Before leaving Yangon, the mission was received by the Deputy Minister for Foreign Affairs, Mr. Khin Maung Win, who had been kept regularly informed of the progress of the discussions and who welcomed the news that they had finally led to an "Understanding". He expressed the willingness of the Government to make the assessment process a success and asked the mission to communicate to the Director-General his Government's wish to assist the HLT as much as possible in achieving its objectives. If difficulties arose, they could be discussed openly. The Government was firmly committed to resolving the issue.

The final text, as initialled by both parties at the airport after final amendments, is reproduced in Appendix 5. Before leaving, the representative of the Director-General expressed the concern that the content of the Understanding and its implications should be communicated to the General Secretary of the National League for Democracy (NLD). Since it had been unable to do so directly, given the various constraints which it had had to face, the mission, on behalf of the Director-General, asked Mr. Léon de Riedmatten, former ICRC delegate and currently representative of the Centre for Humanitarian Dialogue, to do so instead.

The mission could not conclude its report without thanking Mr. Patrice Coeur-Bizot, the United Nations Resident Coordinator, and his assistant, Ms. Jeanne Lennkh, for their valuable support in the organization of meetings and in ensuring the smooth progress of the mission. It also wishes to thank Mr. Léon de Riedmatten for the very useful advice which he imparted to the mission on the basis of his particular experience and role. The mission was encouraged by the contacts which it had with the international organizations represented in Yangon and with the current ICRC delegate, Mr. Michel Ducraux. Overall, those organizations expressed a strong interest in contributing in a concrete way to the success of the present undertaking and in particular to promoting the development and implementation of the programme of the future high-level team as far as their knowledge and resources permit.

Geneva, 31 May 2001.

Appendix 1

Communication dated 1 March 2001 from the Director-General to the Minister for Labour of the Government of Myanmar

Dear Mr. Minister,

I acknowledge receipt of your letter dated 11 February 2001 in reply to mine of 22 December 2000, and would like to offer the following comments.

As regards the second paragraph of your letter, I can assure you that your views, as well as the text of the statement which your Ambassador intended to make and which reached the Chairman's Office after the closure of the session, will be reflected appropriately in the documentation before the next session of the Governing Body.

I have taken note of your statement that Myanmar is "resolute in our endeavours to implement the framework of legislative, executive and administrative measures which we have put in place" with a view to the total elimination of the practice of forced labour in Myanmar, and in particular of the information that some action has already been taken against the perpetrators of such practices.

However it is clear that Myanmar cannot expect to receive credit for these endeavours in the absence of an objective assessment of their practical implementation and actual impact. The ILO alone is in a position to provide such an assessment with the authority necessary to carry legal, practical and political consequences at the international level. This is all the more relevant in the light of the continuing flow of information from various sources concerning the issues in question.

For these reasons I would like to reiterate that the Office stands ready to engage in discussions about the possible format and modalities such an objective assessment could take. In my view, it would be highly desirable that such discussions take place before the next session of the Governing Body. It should be recalled that the International Labour Conference will, in accordance with paragraph 1(a) of its resolution, review the situation at its next session in June, on the basis of all relevant information then available.

Yours sincerely,

(Signed) Juan Somavia.

Appendix 2

Communication dated 26 April 2001 from the Minister for Labour of the Government of Myanmar to the Director-General

Excellency,

I acknowledge receipt of your letter dated 1 March 2001 which responded to my letter of 11 February 2001.

I note with satisfaction that, as assured by you in the letter under reference, the statement of my Ambassador as well as our views on the issue of forced labour in Myanmar had been reflected in the documentation submitted to the 280th Session of the Governing Body of the ILO held last month. I wish to express thanks to you for that.

I fully appreciate your Office's continued readiness to engage in discussions about the possible format or modalities for an objective assessment of the actual implementation of the legislative, executive and administrative measures that we have taken to eliminate forced labour in Myanmar. In this regard I would like to reiterate Myanmar's willingness to occasionally accept an ILO representative based in the Regional Office in Bangkok or Geneva and/or a mutually acceptable person. We are convinced that such a representative would be able to assess objectively the implementation of the abovementioned measures and their impact. For the assessment to be generally effective, in our view, it would require the involvement of an independent and unbiased entity.

I hope that continued discussions between you and our Permanent Representative Ambassador U Mya Than, who has been designated as our contact point in this matter, will lead to some significant progress before the 89th Session of the International Labour Conference (ILC) in our search for the effective format or modalities acceptable to both sides.

I can assure you that, regardless of any outcome in this joint effort, we will continue to take steps to ensure that forced labour does not exist in Myanmar both in law and in practice and to implement the framework we have put in place.

Yours sincerely,

(Signed) Major-General Tin Ngwe,

Minister for Labour,

Union of Myanmar.

Appendix 3

Communication dated 10 May 2001 from the Director-General to the Minister for Labour of the Government of Myanmar

Dear Mr. Minister,

Thank you for your letter of 26 April reacting to my letter of 1 March in the light of subsequent developments, including the discussions at the 280th Session of the Governing Body.

As envisaged in your letter, discussions have in the meantime continued with Ambassador Mya Than with a view to clarifying the process whereby the objective assessment mentioned in my letter could actually take place.

It now seems clear on both sides that this process would be in two stages. The first stage would be to reach a clear and firm commitment on the modalities of such an assessment on the basis of parameters which have been presented to the Ambassador. It is very urgent that this commitment be finalized so that, as envisaged on both sides, the outcome could be reported to the Conference in June. To reach this outcome as expeditiously as possible, my representatives - whose names have been communicated to the Ambassador - are ready to travel to Yangon as soon as the competent authorities confirm their interest, but no later than early next week.

If this first stage is successful, the second stage would be to undergo the objective assessment itself, in accordance with the abovementioned modalities. This assessment would have to take place not later than the end of the summer so that a report could be prepared for the Governing Body in November.

I hope the above clarification may help the authorities to quickly finalize their position on the matter.

Yours sincerely,

(Signed) Juan Somavia.

Appendix 4

List of meetings held

The mission held 16 meetings in Yangon over three days. It met with the Deputy Minister for Foreign Affairs, senior officials from three ministries (Foreign Affairs, Home Affairs, and Labour), and from the Attorney-General's Office and the Office of Strategic Studies, representatives of 26 diplomatic missions, seven United Nations agencies, a representative of the Geneva-based Centre for Humanitarian Dialogue, and a representative of the ICRC.

Thursday, 17 May 2001

9.40 a.m., Arrival in Yangon

10.30-11.00 a.m., Traders Hotel

Patrice Coeur-Bizot United Nations Resident Coordinator

Jeanne Lennkh Assistant to United Nations Resident

Coordinator

Léon de Riedmatten Centre for Humanitarian Dialogue

11.00 a.m.-1.00 p.m., Traders Hotel

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Lt.-Col. Hla Min Deputy Head, Department of International

Affairs, Office of Strategic Studies

Aung Thein Director-General, Department of General

Administration, Ministry of Home Affairs

Zaw Win Chief of General Staff, Police Force

2.30-4.30 p.m., Traders Hotel

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Lt.-Col. Hla Min Deputy Head, Department of International

Affairs, Office of Strategic Studies

Aung Thein Director-General, Department of General

Administration, Ministry of Home Affairs

Zaw Win Chief of General Staff, Police Force

5.00-6.00 p.m., Japanese Embassy

Shigeru Tsumori Japanese Ambassador

Kiyoshi Koinuma Deputy Chief of Mission

Head of Political Section

Naoki Ito Counsellor

Friday, 18 May 2001

8.00-9.00 a.m., Traders Hotel

Trevor Wilson Australian Ambassador

John Jenkins British Ambassador

Bernard Lelarge French Second Secretary

Hauke Kracht German Third Secretary

Francesco Fedeli Italian Chargé d'Affaires a.i.

Karl Wycoff United States Chargé d'Affaires a.i.

Patrice Coeur-Bizot United Nations Resident Coordinator

Jeanne Lennkh Assistant to United Nations Resident

Coordinator

10.00-10.30 a.m., Traders Hotel

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Lt.-Col. Hla Min Deputy Head, Department of International

Affairs, Office of Strategic Studies

Aung Thein Director-General, Department of General

Administration, Ministry of Home Affairs

Zaw Win Chief of General Staff, Police Force

12.15-1.15 p.m., UNDP Office

Patrice Coeur-Bizot United Nations Resident Coordinator

Jeanne Lennkh Assistant to United Nations Resident

Coordinator

Members of the United Nations Country Team:

Francis Rinville FAO Representative

Guillaume Le Hegarat UNDCP Assistant Representative

Rajiv Kapur UNHCR Chief of Mission

Dr. Rosella Morelli UNICEF Officer in Charge

Jos Vandelear WHO Officer in Charge

Bradley Guerrant WFP Emergency Coordinator

Renata Dessallien UNDP Deputy Resident Representative

P 1.15-2.15 p.m., UNDP Office

Janeh Sukaimi Brunei First Secretary

In May Cambodian Counsellor

Nasaruddin

Mochtar Koro Indonesian Ambassador

Ly Bounkham Lao People's Democratic Republic Ambassador

Dato Mohammad

Bin Noh Malaysian Ambassador

Pablito Mendoza Philippine Third Secretary

Simon de Cruz Singapore Ambassador

Buskorn Prugsapongse Thai Counsellor

Nguyen Van Thanh Vietnamese Second Secretary

Wang Zongying Chinese First Secretary

Shyam Saran Indian Ambassador

Naoki Ito Japanese Counsellor

Chung Jung-Gum Republic of Korea Ambassador

Patrice Coeur-Bizot United Nations Resident Coordinator

2.30-4.00 p.m., Traders Hotel

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Lt.-Col. Hla Min Deputy Head, Department of International

Affairs, Office of Strategic Studies

Aung Thein Director-General, Department of General

Administration, Ministry of Home Affairs

Zaw Win Chief of General Staff, Police Force

6.00-8.00 p.m., Traders Hotel

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Lt.-Col. Hla Min Deputy Head, Department of International

Affairs, Office of Strategic Studies

Aung Thein Director-General, Department of General

Administration, Ministry of Home Affairs

Zaw Win Chief of General Staff, Police Force

Saturday, 19 May 2001

8.00-9.00 a.m., UNDP Office

Mahfuzur Rahman Bangladesh First Secretary

Harishchandra Ghimire Nepalese Chargé d'Affaires a.i.

Yusuf Shah Pakistan Ambassador

Ubayasekara Mapa Sri Lankan Ambassador

Dr. Farouk Riad

Hassan Mabrouk Egyptian Ambassador

Dimitry Darchenkov Russian Second Secretary

Vladimir Stamenovic Yugoslav Attaché

Shigeru Tsumori Japanese Ambassador

Jeanne Lennkh Assistant to United Nations Resident

Coordinator

(Apologies: Israeli Ambassador)

10.45 a.m.-1.30 p.m., Traders Hotel

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Lt.-Col. Hla Min Deputy Head, Department of International

Affairs, Office of Strategic Studies

Aung Thein Director-General, Department of General

Administration, Ministry of Home Affairs

Zaw Win Chief of General Staff, Police Force

4.15-5.15 p.m., Traders Hotel

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Lt.-Col. Hla Min Deputy Head, Department of International

Affairs, Office of Strategic Studies

Aung Thein Director-General, Department of General

Administration, Ministry of Home Affairs

Zaw Win Chief of General Staff, Police Force

5.30-5.45 p.m., Ministry of Foreign Affairs

Khin Maung Win Deputy Minister for Foreign Affairs

Officials from the Ministry

6.00-6.30 p.m., Traders Hotel

Michel Ducraux ICRC Head of Delegation

Jeanne Lennkh Assistant to United Nations Resident

Coordinator

7.00-7.30 p.m., Yangon Airport (initialling of the "Understanding")

Soe Nyunt Director-General, Department of Labour

Win Mya Director-General, International

Organizations and Economic Department,

Ministry of Foreign Affairs

Dr. Tun Shin Director-General,

Attorney-General's Office

Jeanne Lennkh Assistant to United Nations Resident

Coordinator

Appendix 5

Understanding on an ILO objective assessment

Recalling previous discussions which were reported to the Governing Body at its March 2001 session relating to the possibility of an objective assessment being carried out by the ILO with respect to the practical implementation and actual impact of the framework of legislative, executive and administrative measures reported by the Government, within the overall objective of the complete elimination of forced labour in law and in practice;

Recognizing now the desirability of such an assessment being carried out as soon as practicable;

Noting the importance in this connection of the observation made by the ILO Committee of Experts on the Application of Conventions and Recommendations in its 2001 report;

Aware of the need to respect the sovereign right of the country as well as the independence of the Organization in the discharge of its functions;

The Government of Myanmar agrees to receive a high-level team (HLT) to carry out an objective assessment under the following conditions designed to ensure its credibility:

1. The team will be composed of high-level persons appointed by the ILO Director-General on the basis of their recognized qualifications, impartiality and knowledge of the region.

2. Taking into consideration seasonal weather conditions, the assessment shall be carried out in September 2001. The time needed to carry out the assessment in Myanmar could involve up to three weeks.

3. The members of the HLT shall enjoy, for the purpose and duration of the mission, the same protection and status accorded to officials of comparable ranks in the United Nations.

4. The HLT shall have complete discretion to establish and implement its program of work, meetings and visits, taking into account the indications provided, inter alia, in the aforementioned observation of the Committee of Experts on the Application of Conventions and Recommendations, and subject only to valid considerations of security. For this purpose, the HLT shall be accorded full cooperation from the relevant Myanmar authorities. During the establishment and implementation of the HLT's programme, the HLT and the Government may call upon the assistance of a facilitator recognized by all parties concerned as being a knowledgeable and fair intermediary.

5. Based on the results of the assessment, the HLT may provide such advice and comments as it deems appropriate.

6. The report of the HLT will promptly be made available to the Director-General and the Government and transmitted to the Governing Body for consideration at its November 2001 session.

19 May 2001.

(Initialled) U Soe Nyunt,

Chairman of the Myanmar Negotiating Team.

Francis Maupain.

Endnote 1

GB.279/6/1 and the three addenda to that document.

Endnote 2

The text of the resolution is reproduced in Appendix 6.

Endnote 3

The recommendations of the Commission of Inquiry are reproduced in Appendix 7.

Endnote 4

Letters were sent to the following 59 organizations: United Nations, UNHCR, UNICEF, UNDP, UNFPA, OHCHR, UNCTAD, WFP, UNEP, UNODCCP, UNRWA, UNAIDS, Economic Commission for Africa, ECE, Economic and Social Commission for Asia and the Pacific, Economic Commission for Latin America and the Caribbean, Economic and Social Commission for Western Asia, FAO, WHO, UNESCO, UNIDO, IAEA, WIPO, ICAO, UPU, IMO, WMO, ITU, IFAD, PAHO, IMF, World Bank, WTO, OECD, European Commission, Council of Europe, African Development Bank, Asian Development Bank, Inter-American Development Bank, European Bank for Reconstruction and Development, Caribbean Development Bank, League of Arab States, Organization of African Unity, CARICOM, Organization of American States, ASEAN, SAARC, Andean Community, SELA, LAIA, Nordic Council, OIC, CERN, ECOWAS, Arab Labour Organization, World Tourism Organization, IOM, Asian Productivity Organization and the Inter-Parliamentary Union.

Endnote 5

Information on the practice of forced labour up to November 2000 is contained in the 2001 report of the CEACR. The individual observation concerning the observance of Convention No. 29 by Myanmar is reproduced in Appendix 8.

Endnote 6

This statement could not be given to the 279th Session of the Governing Body and is reproduced here for information.

Endnote 7

Appended to the letter of 6 December 2000 from the Permanent Representative of the Myanmar Mission

Endnote 8

Paragraph 539 of the Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29). ILO Official Bulletin, Vol. LXXXI, 1998, Series B, Special Supplement. The full text of the report is also available on the ILO website at the following address: (http://www.ilo.org/public/english/standards/relm/gb/docs/gb273/myanm ar.html).

Individual Case (CAS) - Discussion: 1999, Publication: 87th ILC session (1999)

The Government has supplied the following written information:

The Permanent Mission of the Union of Myanmar to the United Nations Office and other international organizations in Geneva presents its compliments to the ILO, and with reference to the Report of the Director-General to the members of the Governing Body on measures taken by the Government of Myanmar following the recommendations of the Commission of Inquiry established to examine its observance of the Forced Labour Convention, 1930 (No. 29), dated 21 May 1999, has the honour to attach herewith a Memorandum in response to the above-mentioned Report.

The Permanent Mission of the Union of Myanmar would like to request that this Memorandum be treated as an official document in response to the Director-General's Report for use in any proceedings of the Governing Body and other relevant meetings.

Myanmar became a Member of the ILO a few months after its independence in 1948. As a responsible Member it has a long record of cooperation with the ILO and had settled several issues in the best spirit of cooperation.

It has been a consistent policy of successive governments of Myanmar to promote the welfare of labour. Myanmar is determined to build a society where peace and prosperity prevail and where rights of women and children are given all the encouragement and protection which they rightly deserve.

From around 1990 allegations were made to the effect that there is use of forced labour in Myanmar. Myanmar strongly feels that these allegations were largely the result of misconceptions and misunderstandings of the situation and the mentality of the Myanmar people.

Since a sound infrastructure is essential for economic development, the Government of Myanmar has placed special emphasis on this sector. Hence, a substantial effort to improve the infrastructure of the country's economy by building roads, bridges, dams and reservoirs has been undertaken. Realizing the benefits to the country from these projects, people have traditionally contributed labour so that they can be completed sooner. Moreover, it is Myanmar's thinking that "you reap what you sow before death in the present world or in the future cycles of life".

This is the background thinking of our people, and without understanding of these facts people tend to make all kinds of false allegations.

International organizations must not be used as forums to put pressure on member States by the powerful and influential quarters as a means to achieve their political objectives.

However, as stated earlier, since the early 1990s, Myanmar has been the subject of political pressure from some quarters who do not understand the reality in Myanmar. They tend to act largely on information from anti-government elements. They are making these politically motivated allegations to tarnish the image of the Government using every opportunity including various international fora.

In a move to further apply political pressure on Myanmar, the anti-government elements succeeded through false allegations in persuading a few members of the Workers' group to file a complaint against Myanmar under article 26 of the ILO Constitution. This resulted in the formation of the Commission of Inquiry in 1996. Myanmar, on the other hand, very firmly stood up against such allegations. However, the Commission, based on reports of certain terrorist organizations, both inside and outside Myanmar, and also on information given by certain other sources, came up with recommendations in July 1998 that:

(1) Myanmar must bring the Village Act, 1907, and Towns Act, 1907, in line with the forced labour Convention, namely, Convention No. 29 of 1930. Certain provisions of this law are also to be put in line with the Convention;

(2) to take measures to stop current practice through public acts and make them public and not through secret directives;

(3) to enforce penalties upon offenders for extraction of forced or compulsory labour.

As we have said earlier, Myanmar is building a modern nation and a society where peace and prosperity shall prevail. In this process, Myanmar does realize that these recommendations were based on false allegations. But with the spirit of cooperation, goodwill and sincerity towards the ILO, it never rejected these recommendations. Furthermore, it is in the process of revising on its own independent sovereign right, old laws that are not in conformity with the present situation. Under public international law, it has every right to perform this task on its own.

Myanmar finds that these recommendations were not too difficult to accommodate. But at the same time, one must take into account that Myanmar is inhabited by some 135 national races, with a changing economic system.

Thus, when Myanmar received the recommendations and the report of the Commission, it made several communications to the ILO which shows that these recommendations were not neglected. As evidence, these communications are: letters dated 23 September 1998, 4 February 1999, 18 February 1999, 12 May 1999 and 18 May 1999.

The fact remains on record that in the letter dated 23 September 1998, the Ministry of Labour said, "We do not see any difficulty in implementing the recommendations contained in paragraph 539 of the report".

True to its word, Myanmar firmly acted in accordance with its legal system and acted in accordance with the law of the land.

The recommendations made by the Commission were: firstly, that the Village Act and Towns Act be brought in line with Convention No. 29. The essence of the recommendation "brought in line" is in the domain of Convention No. 29. But on the other hand, it is the domain of national law or municipal law as to how to put into effect the provisions of the Convention which is not in the domain of the Convention. At this juncture, it is to be pointed out that legal systems of the world differ from State to State. One legal system in a State cannot be the same with the system of another. The modus operandi for putting in effect the essence of the Convention into national law might be different between two States.

Myanmar in its own legal system has on 14 May 1999 put a "stop" to the offending provisions of the above two laws through an Order from the Legislature to the ministry concerned not to exercise powers for the offending provisions under these two laws. In Myanmar's legal system, the State Peace and Development Council is the Legislature of Myanmar. As in all other countries under constitutional law, it is above the Executive. Executive encompasses the various ministries which includes the Ministry of Home Affairs, which implements these two laws. The Memorandum of the State Peace and Development Council was issued on 14 May 1999 and under it the Ministry of Home Affairs issued Order No. 1/99 of 14 May 1999 ordering all implementing authorities not to exercise powers under Towns Act, section 7, subsection (1)(l) and (m), and section 9 and 9A, and similarly in the Village Act, section 8, subsection (1)(g), (n) and (o), and section 11(d) and section 12. This Order has the force of law to stop all implementing authorities from exercising the offending powers of these provisions.

Thus, under our legal system this measure is taken in compliance with the related recommendation of the Commission of Inquiry.

The second recommendation of the Commission of Inquiry stipulates that the Order be made public. The Order has been made public and distributed immediately to 16 authorities. Besides this step, it will be published in the Myanmar Gazette where all laws are published. There is complete transparency. For the sake of the record, it has been circulated for action to the following 16 authorities:

1. Office of the Chairman of the State Peace and Development Council.

2. Office of the State Peace and Development Council.

3. Office of the Government.

4. Supreme Court.

5. Office of the Attorney-General.

6. Office of the Auditor-General.

7. Public Services Selection and Training Board.

8. All ministries.

9. Director-General, Department of General Administration (forwarded for information and further circulation of the copy of this Order to the State, divisional, district and township administrative officers subordinate to him).

10. Police Major General, Myanmar Police Force (forwarded for information and for further circulation of the copy of this Order to the relevant departments and organizations subordinate to him).

11. Director-General, Bureau of Special Investigation.

12. Director-General, Prisons Department.

13. All State and Divisional Peace and Development Councils.

14. All District Peace and Development Councils.

15. All Township Peace and Development Councils (forwarded for information and for further circulation of the copy of this Order to the Chairman of the Ward and Village Tract Peace and Development Councils subordinate to him).

16. Managing Director, Printing and Publishing Enterprise (with a request for publication in the Myanmar Gazette).

Thus Myanmar firmly believes that the second recommendation is fully complied with.

The third recommendation says that penalties should be imposed for persons under section 374 of the Penal Code for transgression. It is pertinent to draw attention to paragraph 6 of the above-mentioned Order which reads: "any person who fails to abide by this Order shall have action taken against him under existing laws". This is beyond all reasonable doubt that offenders will be punished under section 374 of the Penal Code which is enacted as follows:

Unlawful compulsory labour

374. Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Despite these positive actions and steps taken decisively and effectively by the Government, the ILO office on 21 May 1999 issued the "Report of the Director-General to the members of the Governing Body on measures taken by the Government of Myanmar following the recommendations of the Commission of Inquiry established to examine its observance of the Forced Labour Convention, 1930" that:

(1) the Village and Towns Act had not been "amended";

(2) in actual practice, forced or compulsory labour continues to be imposed in a widespread manner;

(3) no action appears to be have been taken under section 374 of the Penal Code to punish those extracting forced labour.

The facts of the report are inaccurate. The alleged facts mentioned in the report are based on allegations supposed to have taken place prior to 14 May 1999. Not a single allegation is found after the Order of 14 May 1999 was issued. Thus, in legal language, one can say of this situation that "things speak for themselves". If there be any alleged acts that supposedly took place after 14 May 1999, the authorities should be directly informed of such allegations.

Myanmar on the other hand continues to be objective and steadfast in its course of building a modern nation where peace and prosperity prevails, taking into account the circumstances as they stand today. Moreover, Myanmar is in the process of making a new Constitution, when after its completion, all laws will be adjusted to meet the requirements of a modern nation.

Meanwhile, Myanmar takes the spirit that it has "charity towards all and malice towards none". There is a saying in law that justice must not only be done but must also be seen to be done. Justice must also be fair. Thus, Myanmar appeals to all Members of the ILO to understand the true facts and seek your help to support it in the discussions at the ILC.

Observations and conclusions

The most pertinent observations to be made of the report of the ILO Office dated 21 May 1999 are on the three negative points contained in paragraph 61.

Although these three points have been adequately countered and addressed in Order No. 1/99 dated 14 May 1999 issued by the Ministry of Home Affairs of the Government of the Union of Myanmar, which is the Order Directing Not to Exercise Powers Under Certain Provisions of the Towns Act, 1907, and the Village Act, 1907, the explanations given in Order 1/99 have not been mentioned in the Director-General's Report, except for the fact that Order 1/99 was simply annexed as Appendix III to the Report.

It may be recalled that in an earlier communication from the Director-General of the ILO, some deadlines had been mentioned for a response to be received from the Myanmar side. Please note that Order 1/99 was issued on 14 May 1999 which, inter alia, specifically orders that the offending paragraphs of the Village Act, 1907, and Towns Act, 1907, not be exercised; that any and all unpaid labour or compulsory labour be terminated henceforth; that any person who fails to abide by this Order have action taken against him; that Order 1/99 is not a secret order but is circulated to all government ministries among others; that it be publicly and openly published in the Myanmar Gazette for all to see, complies with all recommendations of the Commission of Inquiry.

Hence, it can be seen that Myanmar had adequately and specifically taken action to respond to, and to rectify the provisions of the Village and Towns Acts, and also taken additional measures as called for in the recommendations of the Commission of Inquiry. All this had been done in a timely manner.

But the question arises as to why such action taken by the Myanmar authorities was not reflected in the Director-General's Report, which, as a result led to the three negative observations as seen in paragraph 61 of the Report.

The answer would seem to be that Order 1/99 was issued only on 14 May, which was only five working days away from the 21 May deadline. It may be concluded that time constraints prevented any examination of this Order and compelled the drafters of this Report to only affix it to the Report as Appendix III.

But nevertheless, this time constraint cannot be used as an argument to the effect that Myanmar had not complied with the recommendations.

The Report in question contains oversights and omissions as stated above. Furthermore, the following additional observations and conclusions can be found.

The Report is full of unfounded and biased charges deliberately levelled at Myanmar and the Myanmar Government.

The alleged facts in this Report are manifestly false accusations concocted with evil intent to bring about the destruction of Myanmar by Myanmar expatriate organizations abroad and renegade groups that oppose all measures undertaken by the Myanmar Government. They are also based on blatantly false accusations made verbally, in writing and in the form of announcements by the National League for Democracy (NLD), whose only aim is to create difficulties for the Government to place it in an untenable position.

At present the Government is implementing construction projects with systematic planning and proper budget appropriations. Moreover, most of the work being done on these projects is through the use of mechanized implements and machinery. In any project where human labour has to be unavoidably employed, there is a budget allotment for payment of wages to the workers. Any worker so employed is paid fair wages and there is not a single instance or a shred of evidence that forced labour is being used in these projects.

Work on the highways under construction in various regions, including the union highway in the Shan State, and new railroads being laid, are being done by servicemen of the armed forces. There is not a single civilian working on them.

Any jobs in which the people are involved are confined to the digging of small irrigation ditches to convey water to their own private cultivation plots. The larger state projects for the building of irrigation canals and dams do not use forced or conscripted labour of civilians. As stated, if people are at work at all, they are working in their own interest and according to their own plans and schedules on their privately owned plots of land.

State construction projects employ only military servicemen. So the accusation that the Government is using forced labour on these projects is baseless and flagrantly false. Since only members of the armed forces are employed in the construction of rail and motor roads, to say that forced labour is being used is utterly meaningless.

Other ongoing projects such as the reclamation of vacant and fallow lands and the construction of residential housing and hotels are all ventures by private entrepreneurs who have made capital investments. The use of forced labour in such cases is totally out of the question. In fact when incidents arise over labour grievances, the Government stands firmly on the side of the workers in settling such disputes.

Concerning the charge that the army conscripts porters in its military operations, it could be said that this was the practice in former times when the insurgencies were rampant. But the fact remains that these porters were always paid and the defence budget always had an allotment for payment of their wages. These porters enjoyed the same rights as a soldier. He was given the same rations and paid the same wages. Moreover, a porter, if wounded, obtained equal compensation with a serving soldier and he was entitled to the same hardship allowances. But this issue of military porters is no longer relevant and has become a non-issue since military operations are no longer an urgent necessity.

The Myanmar Government categorically refutes all the false information deliberately fed by the NLD.

An esteemed organization like the ILO should not give credence to fabricated news and lies supplied by those who only see Myanmar and the present Government through hostile and resentful eyes, and who are moreover bent upon destroying the country to put the Government in a predicament.

Finally, it is relevant to reiterate that Myanmar, as a responsible Member of the ILO, has a long record of cooperation with the ILO, and has in the past settled issues in a spirit of cooperation. This spirit of cooperation will continue in the future.

As examples of this cooperation, Myanmar had signed a considerable number of ILO Conventions, including some core Conventions.

At present the ILO is in the process of inviting and persuading countries that have not done so, to sign, to ratify or accede to those Conventions that they had not yet become State parties.

In this positive atmosphere being created at present by the Members of the ILO, it would indeed be unfortunate, even counter-productive, to have more and more ILO Members become State parties to core Conventions, if one Member who had signed a core Convention, in this case the Union of Myanmar, is singled out unfairly and unduly criticized.

Such an exercise will no doubt serve as a reminder to those who have not yet signed the core Conventions to maintain their status quo, and will certainly help to dissuade them from signing the core Conventions, much to the detriment of the ILO membership as a whole.

A Government representative reiterated the written information provided by his Government on the case, set forth in the preceeding paragraphs.

The Worker members recalled that in the Committee's general discussion the Government member of India had stated that the article 26 constitutional procedure was an extreme measure designed to address an extreme situation, reached only when a member State wilfully and deliberately refused to take measures to comply with the suggestions and recommendations of the supervisory bodies. He had concluded that article 26 should only be applied as a last resort. By that measure, the Government of Myanmar was particularly deserving of the strongest and most extreme measures available to the supervisory bodies for its stubborn refusal to abide by its commitments under the Convention.

For over 35 years, the Committee of Experts had been denouncing the evils of forced labour in Burma. However, no action whatsoever had been taken by the Government to end the practice. On the contrary, in recent years the practice had grown. This was the fourth time in the past eight years that the Conference Committee had examined the case. In the meantime, an article 24 representation had been accepted by the Governing Body. In 1994, the Governing Body had adopted tripartite conclusions confirming that Myanmar was in fundamental violation of the Convention and calling on the Government to make the necessary changes in the law, to enforce the law, and to punish those responsible for the continued exploitation of forced labour throughout the country. Once again, no action had been taken by the Government in either law or practice.

The Conference Committee had expressed its deep concern at the serious situation in the country in both 1995 and 1996. It had restated in ever stronger terms its admonition to the Government to abolish all legal provisions and immediately abandon all practices which were contrary to the Convention. To emphasize its concern, it had set its conclusions aside in special paragraphs to its report and in 1996 had cited the case as one of persistent failure to implement a ratified Convention. Yet there had still been no action on the part of the Government, except for denials, delays and deception. Finally, after many years of attempting to persuade the Government to fulfil its treaty obligations and end the misery of hundreds of thousands of victims of this egregious practice, a complaint had been submitted under article 26 of the Constitution and rapidly accepted by the Governing Body. A Commission of Inquiry had been established in March 1997, which had held closed hearings in November 1997 and visited the region early in 1998. The military regime could have participated in the hearings and presented its own witnesses. It could have cooperated with the Commission of Inquiry when it travelled to the region, but it had chosen not to and had barred the Commission from even entering the country.

Despite this total lack of cooperation, the Commission of Inquiry had completed its work and submitted a document of almost 400 pages. The Commission had concluded that there was abundant evidence showing the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military for portering, the construction, maintenance and servicing of military camps, other work in support of the military, agricultural work and work on other production projects undertaken by the authorities or the military, sometimes for the profit of private individuals, as well as the construction and maintenance of roads, railways, bridges and other infrastructure. The Commission of Inquiry had also concluded that forced labour in the country was widely performed by women, children and elderly persons and that the burden of forced labour was particularly great for non-Burman ethnic groups, especially in areas where there was a strong military presence.

The recommendations of the Commission of Inquiry had been taken up by the Committee of Experts. These included urging the Government to take all necessary steps to ensure that the relevant legislative texts, and particularly the Village Act and the Towns Act, were brought into conformity with the Convention, as the Government had been promising to do for over 30 years. The Commission of Inquiry had also insisted that no more forced labour should be imposed by the authorities, and particularly by the military. Finally, the Commission of Inquiry had emphasized that the power to impose compulsory labour would continue to be taken for granted unless legal action were taken against those responsible. Information was, therefore, required on whether any offenders had actually been punished.

At its session in March 1999, the tripartite members of the Governing Body had called on the Government to make all the necessary changes in the laws to bring them into compliance with the Convention by 1 May 1999. It had also requested the Director-General to submit a report by 21 May 1999 concerning the measures which the Government had taken to comply with the recommendations of the Commission of Inquiry. The Director-General and the Office were to be congratulated on producing such an exhaustive and well-documented report in such a short period.

The Director-General had invited the Government to inform him in detail by 3 May 1999 at the latest of any measures taken on each of the recommendations of the Commission of Inquiry. He had also invited member States and workers' and employers' organizations to provide information. Fourteen governments, the FAO, UNHCR,UNIDO, IMF and the World Bank, as well as many labour organizations, employers' and human rights organizations, in addition to the exiled Federation of Trade Unions of Burma, had responded to the call to provide information. The Director-General's Report contained new documentation substantiating the conclusions of the Commission of Inquiry that a variety of forms of forced labour were prevalent throughout the country. It provided further evidence of the continued use of forced labour in virtually every ethnic state of the country as part of the campaign to put down the aspirations of ethnic minorities. It also contained evidence of the continued use of forced labour in the Burman areas. The scope and breadth of the information contained in the report of the Commission of Inquiry and of the Director-General were staggering.

The above information provided the context for the information supplied by the Government. It had indicated in a letter of 18 May 1999 to the Director-General that Order No. 1/99 directed the relevant authorities not to exercise the powers conferred upon them by the Village Act and the Towns Act. This letter was a clear admission that the Government had not changed the law by 1 May 1999, as requested by the Governing Body. Indeed, the Director-General had recognized in his Report that the Order did not represent a change in the two Acts, as recommended by the Commission of Inquiry. Moreover, it could be reversed at any time.

Nor had the Government representative provided any new information to suggest that it had implemented the other recommendations. The only new element put forward by the Government representative was the suggestion that all the evidence previously collected had been prior to 14 May 1999, and that the coming into force of the new Order had radically changed the situation.

The Worker members recalled that, as recently as 1 May 1999, the Chairman of the State Peace and Development Council, Senior General Than Shwe, had urged workers to beware of new colonialists meddling and exerting control in international organizations with an air of safeguarding human rights and workers' rights. Two weeks later, at a press conference held during the 13th meeting of ASEAN Labour Ministers, the military regime had reiterated its long-standing blanket denial of the existence of forced labour in Burma and had argued once again that it was one of the noble traditions of the Burmese people to give freely of their labour, since they believed that voluntary labour would bring benefits to them in their present and future existence. These comments revealed the true nature of the regime's cooperation with the ILO.

In conclusion, the Worker members quoted from the conclusions of the Commission of Inquiry, which had considered that "the impunity with which government officials, in particular the military, treat the civilian population as an unlimited pool of unpaid forced labourers and servants at their disposal is part of a political system built on the use of force and intimidation to deny the people of Myanmar democracy and the rule of law. The experience of the past years tends to prove that the establishment of a government freely chosen by the people and the submission of all public authorities to the rule of law are, in practice, indispensable prerequisites for the suppression of forced labour in Myanmar." The Commission of Inquiry had hoped and trusted that in the near future the old order would change, yielding place to the new, where everyone in Myanmar would have an opportunity to live with human dignity and to develop his or her full potential in a freely chosen manner, and that there would be no subjection or enslavement of anyone by others. It had concluded that this could only happen if democracy were restored, so that the people as a whole could wield power for their common good. The Worker members reaffirmed that, until such fundamental change occurred, the challenge of ridding the country of decades of forced labour could not even begin.

The Employer members noted that the Committee of Experts had begun publishing observations in this case in the beginning of the 1990s and that the case was not new to the Conference Committee, which had indeed noted it in special paragraphs in the past. In the meantime, there had also been a representation submitted pursuant to article 24 of the Constitution and a complaint under article 26. They emphasized that all the information presently before them could only confirm their previous apprehensions as to the gravity of the situation in Myanmar. They contended that the situation was simple but sad, and in that regard quoted the following from the report of the Commission of Inquiry:

"There is abundant evidence showing the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military for portering, the construction, maintenance and servicing of military camps, other work in support of the military, work on agriculture, logging and other production projects undertaken by the authorities or the military, sometimes for the profit of private individuals, the construction and maintenance of roads, railways and bridges, other infrastructure work and a range of other tasks ... Forced labour in Myanmar is widely performed by women, children and elderly persons as well as other persons otherwise unfit to work ... All the information and evidence before the Commission shows utter disregard by the authorities for the safety and health as well as the basic needs of the people performing forced or compulsory labour ... and many are killed or injured ..."

They recalled that the concerns raised were based on provisions of the Village Act and Towns Act, and more particularly on the problems in practice. While there was indeed a law providing for the punishment of those compelling any person to labour against their will (section 374 of the Penal Code), they stressed that this provision had not been implemented and that forced labour was being carried out and ordered by the authorities.

They remarked that a Commission of Inquiry seldom uses such forceful terms as those found in its report on forced labour in Myanmar which referred to the "widespread and systematic" use of forced or compulsory labour "with total disregard for the human dignity, safety and health and basic needs of the people of Myanmar". They emphasized the three main recommendations of the Commission of Inquiry: (i) that the relevant legislative texts be amended as had been requested by the Committee of Experts and promised by the Government for over 30 years; (ii) that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; (iii) that the penalties that may be imposed under the Penal Code be strictly enforced since the power to impose compulsory labour will not cease to be taken for granted unless those used to exercising it are actually brought to face criminal responsibility. According to the Employer members, since the line between ordinary labour and forced labour had become so blurred, as confirmed by the statement of the Government representative to the effect that people have traditionally contributed labour so that projects for the improvement of the country's infrastructure could be completed sooner, enormous efforts would need to be taken to change attitudes and to inform the population of changes in practice. They then referred to the statement of the Government representative to the effect that the Report of the Commission of Inquiry was full of unfounded and biased charges and that the alleged facts were manifestly false accusations which were politically motivated. The Employer members were of the view that this illustrated the attitude of the Government that no changes were needed and none would be carried out. However, the Government had also indicated its intention to cooperate with the ILO to comply with the recommendations. The Employer members viewed the Government's response as continuing to illustrate its contradictory attitude and approach and a lack of credibility. Referring to Order No. 1/99 issued on 14 May 1999, they queried whether such an instrument could amend a law, and whether indeed the Government intended to comply with the recommendations at all. Since the Order provided that any Acts or laws in force should be applied if provisions of the Order were not implemented, the Employer members asserted that this showed clearly that the Government had no intention of abrogating or amending the legislation at issue.

Concerning the recommendation that concrete action be taken to stop the present practice through public acts of the executive promulgated and made known to all levels of the military and to the whole population, the Government representative had pointed out that the new Order had been distributed to 16 authorities and thus in its view it had complied with this requirement. The Government representative had also said that anyone not complying with the new Order would be subject to penalties; however, in the view of the Employer members, such statements could only be evidence of a continuation of the Government's refusal to amend the laws and to apply penalties under existing laws.

The Employer members regretted that they had not heard any clear statement from the Government representative indicating a political willingness to change the existing law and practice. They called on the Committee to note with deep regret the continuation of the practice of forced labour in Myanmar and to urge the Government in the strongest possible terms to meet its obligations.

The Government member of China hoped that the Committee would take note of the new progress achieved by the Government in the application of the Convention, as reported by the Government representative.

The Government member of the United Kingdom, also speaking on behalf of the Government members of Austria, Belgium, Canada, Denmark, Finland, Germany, Iceland, Netherlands, Norway, Portugal, Spain and Sweden, stated that the report of the Committee of Experts once again provided disturbing evidence of the use of forced labour and other human rights abuses in Burma. The Governments on behalf of whom he was speaking had expressed grave concern at this deplorable situation on a number of occasions, both in the Conference Committee and elsewhere.

He recalled the findings of the Commission of Inquiry, which had concluded that the military regime in Burma had absolute authority to exploit forced labour under threat of torture, rape and murder, and that the burden of forced labour in the country was felt disproportionately by ethnic minorities and other vulnerable groups, including women, children and the elderly. The Commission of Inquiry had recommended that the use of forced labour should be halted with immediate effect and that the authorities should bring the legislation into conformity with the Convention and enforce existing legal penalties. Despite the repeated assurances made by the Government representative that the regime was taking action to end the use of forced labour, the recent report of the Director-General once again made it clear that the recommendations of the Commission of Inquiry had not been implemented and that the people of Burma continued to suffer gross and systematic human rights abuses.

When adopting the Declaration on Fundamental Principles and Rights at Work, all 174 member States of the ILO had reaffirmed their commitment to the Organization's core human rights principles, including the abolition of forced labour. He warned of the clear danger that the entire Organization and its supervisory system would be discredited if decisive action were not taken to ensure that the Burmese authorities complied with their obligations to the ILO without further delay. All the available options should be considered to secure the compliance of the Burmese authorities with their obligations to the Organization and the Conference Committee should give the clearest possible mandate for such action.

The Government member of Canada noted once again that the situation in Burma remained unchanged. Freedom of association had not been truly respected, the use of forced labour and child labour was pervasive. Burma was the most long-standing and egregious violator of basic workers' rights and international labour standards and continued to show its utter disdain for the proceedings of the ILO and the opinion of the international community, as shown by the total lack of sincerity and substance in the statement of the Government representative.

The case had been discussed by the ILO since 1987, but there had been a consistent lack of concrete action by the Burmese authorities to comply with the recommendations of the Commission of Inquiry. She therefore strongly urged the Burmese authorities to take immediate concrete steps to resolve the unacceptable situation in the country. She expressed agreement with the statement made by the Government member of the United Kingdom that there was a clear danger that the entire Organization and its supervisory system would be discredited if decisive action were not taken to ensure that the Burmese authorities complied with their commitments to the ILO. All the available options should be considered in securing the compliance of Burma with its obligations to the ILO.

The Worker member of Colombia expressed incredulity that, at the close of the century, forced labour or conditions similar to slavery still existed in Myanmar. For years, the Committee of Experts, the Commission of Inquiry and the members of the Committee on the Application of Standards, had called for an urgent solution to the problem, yet the only outcome had been inconclusive promises on the part of the Government of Myanmar. He recalled that the Commission of Inquiry had concluded that, despite Government denials, there was forced labour in Myanmar, involving men, women and children. He said that the Government representative of Myanmar should be asked what type of society it was seeking to build by violating human dignity and how long the members of the Committee would have to listen to justifications that did not resolve the issue. He concluded by urging the Government to end its rhetorical references to legal texts, and to adopt practical measures to bring forced labour to an end.

The Worker member of Ireland emphasized that deception and double-speak had been the hallmarks of the attitude adopted by the Burmese authorities towards the international community in general and the ILO in particular, as demonstrated beyond any shadow of doubt by the issue of forced labour and its failure to comply with the Convention. The situation was graphically described in the reports of the Commission of Inquiry and the Committee of Experts. The persistence of forced labour on a massive scale had been fully revealed, as well as the personal and individual responsibilities of those who perpetrated this crime against humanity. The Commission of Inquiry had demanded the amendment of the Village Act and the Towns Act, an end to the imposition of forced or compulsory labour, and the adoption of legal action under section 374 of the Penal Code against those who imposed forced labour. As demonstrated by the Director-General's Report to the Governing Body in May 1999, these conditions had not been met and the authorities had once again resorted to deception. The authorities had claimed, in a letter to the Director-General, that the offending provisions of the two Acts had been suspended, as required by the ILO, and that this measure had been widely publicized. However, not only had the measure been found to be null and void by the latest ILO report, but information about the change had been suppressed in the country's radio, television and newspapers. It clearly amounted to no more than a cosmetic change designed to deceive the ILO and the international community.

However, she stated that the international labour movement and the international community would not be distracted by yet another promise. The problem of forced labour was not confined to the Village Act and the Towns Act, but had its roots in the fact that it was used by the regime itself. The regime could, therefore, end the practice forthwith if it so wished.

She concluded that all possible steps would have to be taken by the ILO to bring this abominable practice to an end. The findings and conclusions of the Commission of Inquiry needed to be widely disseminated throughout the United Nations system, and particularly to the agencies working in Burma. The ILO would have to continue to closely monitor the situation for as long as it persisted. It should also be taken into account that the data gathered by the ILO might one day be referred to the International Criminal Court. Above and beyond the violation of the Convention, forced labour and slavery constituted crimes against humanity and should be condemned as such. Moreover, the ILO should consider revoking or restricting the privileges accorded to the country as a member State of the ILO until it fully complied with the recommendations of the Commission of Inquiry and basic international standards of decency and respect for humanity, as set forth in the Convention.

The Worker member of Pakistan joined with previous speakers in emphasizing his concern at the situation in the country. The difference between freedom and slavery lay in the right to take up freely chosen, remunerated and productive employment. Slavery consisted of the imposition of labour against the will of the persons concerned. All those who believed in human dignity and respect condemned forced labour and slavery. Indeed, it was one of the basic objectives of the labour movement as a whole to combat these scourges, which destroyed the dignity of mankind in all countries. These principles were adequately established in the United Nations Universal Declaration of Human Rights, the Declaration adopted by the Social Summit and the ILO's Declaration on Fundamental Principles and Rights at Work. Forced labour was a crime against humanity and needed to be stopped wherever it occurred. The Commission of Inquiry had established beyond any doubt that the population of the country, including women, children, the sick and injured, were forced to perform work against their will, under threat of abuse, torture and rape.

Although the Commission of Inquiry had made it clear that the current legislation needed to be amended, the authorities had merely adopted an executive order, which did not have the legal authority to suspend the two Acts in question. Nor had any information been provided on the numbers of persons who had been convicted for the imposition of forced labour, or the other measures adopted. The Committee should express great concern at the situation and demand the country, instead of paying lip-service to the principles involved, to take concrete action to fulfil its obligations towards the international community and give effect to the recommendations of the Commission of Inquiry.

The Worker member of Canada emphasized that the evidence was overwhelming and the crime was heinous. The workers of Canada were deeply offended by the Government's lack of cooperation with the ILO and the continued practice of forced labour in the country. The Government had supplied written information in which it stated that hostile elements had succeeded through false allegations in persuading a few members of the Workers' group to file a complaint under article 26 of the ILO Constitution. However, in practice, the complaint had been submitted by 25 Workers' delegates to the 83rd Session of the ILC, who had all been members and substitute members of the Governing Body. The tripartite Governing Body had decided as a whole to accept the article 26 complaint and establish the Commission of Inquiry.

In accordance with the conclusions and recommendations of the Commission of Inquiry, the Governing Body had requested the Government to amend the offending legislation by 1 May 1999. The Government had not done so and, from its written statements, appeared to be disparaging those recommendations. He, therefore, supported the call for the Committee to adopt the strongest possible conclusions on this worst of cases.

The Worker member of Zimbabwe recalled the conclusion of the Commission of Inquiry that there was abundant evidence of the pervasive use of forced labour imposed on the civilian population by government authorities and the military. Forced labour was used for various purposes, including logging, agricultural work, construction, the maintenance of roads, railways and bridges, and sometimes for the profit of individuals. The worst aspect was that forced labour was performed by women, children and elderly people, including persons who were unfit for work. This was totally unacceptable by any standards. Yet the Commission of Inquiry had also concluded that the Government showed utter disregard for the safety and health and basic needs of the victims of forced labour. Moreover, some of those who were forced to work were beaten whilst engaged in forced labour. In contrast with the Government representative's claims that these were false and politically motivated allegations, it had to be acknowledged that the situation in the country did indeed constitute an extreme case of abuse, torture and slavery of its citizens.

He strongly urged the Government to take the necessary measures immediately to comply with all the recommendations made by the Commission of Inquiry. He called upon the Committee to use the strongest possible language in its conclusions in the hope that the Government would fulfil its obligations.

The Worker member of Greece pointed out that, close to Geneva, a war was being waged in which the international community had decided to defend an ethnic minority whose rights were being violated. After reading the observation of the Committee of Experts, it was time to consider what action the international community should take to defend ethnic groups whose rights were being violated in Myanmar and whose lives depended on an oligarchy. Should the Committee simply take note of the changes announced or should it take practical measures to end the suffering of the Burmese people? While emphasizing that the Committee was not a court, he expressed the conviction that if it had been, the Government would have been given the maximum sentence. The Burmese people had already suffered for too long and their suffering should be ended.

He asked the Government representative of Myanmar about the situation of two trade unionists, asking for confirmation that, on 13 June 1997, Myo Aung Thant and Khin Kyaw had been sentenced to life imprisonment plus seven years and 17 years' imprisonment respectively, and if so on what grounds?

The Government member of Indonesia stated that he had followed the present case with great interest in the Governing Body and the Conference Committee and shared the concerns expressed by the Employer and Worker members and several Government members. In March 1999, his delegation had joined with those of several other countries in requesting the Governing Body to give the Government time to respond to the conclusions of the Commission of Inquiry. He had also stated that he would convey the concerns of the Governing Body to the Government. In May 1999, he had visited the country and had met representatives of the Government. He had been informed that two national teams had been established, one composed of senior officials and one at the ministerial level to prepare the reply and communications to the ILO concerning the case. Both teams had taken several steps in relation to the conclusions of the Governing Body and the Commission of Inquiry. Before he had left the country, the Government had issued Order No. 1/99 prohibiting the exercise of powers under certain provisions of the Towns Act and the Village Act. This appeared to him to be an important step by the Government leading in the right direction towards concrete action. From the informal talks which he had held with government officials and the statement made by the Government representative, he had gained the impression that the Government was committed to reviewing the two Acts.

He expressed the conviction that, after a certain period of time, the Government would be able to comply with the conclusions of the Commission of Inquiry and with the Convention. However, it had to be understood that several years were required to amend legislation. The Committee should, therefore, provide support to the Government so that it could proceed with the steps that it had taken.

The Government member of the United States expressed full support for the statements made by the Government members of the United Kingdom and Canada and recalled that the Committee had been making strong comments on the flagrant violation of the Convention by Burma for a number of years. The allegations of the pervasive use of forced labour imposed on the civilian population by the authorities and the military were supported by thousands of pages of evidence. The abuses affected women, children and the aged and included physical abuse, murder and rape.

At each of the sessions of the Conference Committee and the Governing Body, the authorities had promised change, but none had been forthcoming. The Commission of Inquiry had recommended that these horrible practices cease immediately and had established a deadline of 1 May 1999 for legislative changes. In response to a request by the Governing Body, the Director-General had issued a report on the follow-up to the recommendations of the Commission of Inquiry. No fewer than ten international organizations and 14 member States had contributed information to the report. The Director-General had concluded that, despite the Order issued on 14 May 1999, there was no indication that the recommendations of the Commission of Inquiry had yet been followed up. The Village Act and the Towns Act had not been amended; the practice of forced and compulsory labour continued to be widespread; and no action appeared to have been taken under section 374 of the Penal Code to punish those exacting forced labour. The collective lives of thousands of citizens were still at risk and patience had run out. It was time for the Organization to take its most serious measures to ensure compliance with the obligations accepted voluntarily by the Government when it ratified the Convention.

The Worker member of Germany stated that if any further proof were needed of the lack of the political will by the Government of Myanmar to improve the situation, it was provided in abundance by its reaction to the recommendations of the Commission of Inquiry. The written information provided by the Government showed that it considered that it had already fulfilled the second of the Commission of Inquiry's recommendations by issuing Order No. 1/99 of 14 May 1999. The Commission of Inquiry had urged the Government to take the necessary steps to ensure that no forced or compulsory labour was imposed by the authorities. The Government gave the impression that it believed it had dealt with the problem by issuing a piece of paper and transmitting it to 16 official entities. He agreed with previous speakers that the strongest measures should be recommended by the Committee in its conclusions on the case.

In reply, the Government representative stated that he had listened with great patience to all the speakers. It was necessary to bear in mind the particular situation of each country and the circumstances of its law-makers. The Convention was an international treaty in the domain of international law. However, every country had its own system of national law or municipal law through which the provisions of the Convention would be put into effect. There was, therefore, no uniform practice for the implementation of treaties at national level. His country had its own system of implementing and amending legislation. If there had not been any political will, no measures would have been adopted.

Scholars of international law in their works had written as their opinion that there is not uniform practice concerning the application with the municipal sphere, each country has its own particularities as regards promulgation or publication of treaties, legislative approval of treaties and so on. As to the manner in which its municipal law it framed, the State has under international law a complete liberty of action, and its municipal law is a domestic matter in which no other State is entitled to concern itself, provided that the municipal law is such as to give effect to all the international obligation of the State. This is the international opinion and practice of the international legal scholars which is a source of international law.

The Order 1/99 is a strict municipal law measure, made under practice as referred to above. The legislature which the legal authority to make laws can provide amendments of laws through an order in the Myanmar's legal system. Here, it gives Orders to the Home Ministry through a memorandum to issue an order to stop the implementation of the offending provision of the Village and Towns Act. Thus, offending provisions that are not in line with Convention No. 29 are stopped. In Myanmar Orders can stop the implementation of certain laws to be in line with the treaty. It is the modus operandi as how to put the municipal law in line with the Convention. This right is given to municipal law by international law and Myanmar has fulfilled this condition.

As already stated, Myanmar made these stops of implementation in accordance with its own sovereign rights under municipal law according to its internal legal practice by international law. The order has been given by the Legislature and an Order has been issued by the Executive.

However, the adoption of Order No. 1/99, constituted a step forward. The instruction had been given by the legislative authority and the Order had been adopted by the executive. The effect was to bring an end to the offending provisions of the Village Act and the Towns Act. He noted in this respect that a press conference had been held on 15 May 1999, on the occasion of the Asian Labour Ministers' meeting, at which publicity had been given to the fact that measures had been taken to bring an end to the implementation of the offending provisions, in accordance with the legal system in the country. He reaffirmed the liberty of action of each State to give effect to the necessary measures according to its own system.

In response to the questions raised by the Worker member of Greece, he affirmed that if the evidence proved that a person had broken the law, that person would be subject to the relevant penalties. He said that in Myanmar no person is above the law. And if any individual is in breach, he shall be penalized. In the same way, the individual mentioned in the breach of criminal law is penalized as a result of it, and not because he/she is a worker. If there are any cases where anybody has broken the law under forced labour after issue of the law, and if there be just one case, once informed the authorities in Myanmar will take legal action. He emphasized that his country was now totally at peace and was not engaged in any wars. That peace is unprecedented since independence. If an official request were to be made in writing for information on the cases in question, it would be given due consideration.

He reaffirmed the differences in national legal systems and circumstances and reiterated that, if there had been no political will, Order No. 1/99 would not have been adopted. The country was in the process of developing a new Constitution. Once the Constitution had been adopted, all of its laws would be reviewed. The members of the Committee needed to show proof of consideration and understanding for the situation of the country. Compliance with the conclusions of the Commission of Inquiry required a change in the law. In this respect, Order No. 1/99 had been publicized.

The Government member of Sri Lanka proposed that, in view of the legal steps taken by the Government to change the law, the Committee should give consideration to the establishment of a time frame for the Government to give effect to the recommendations of the Commission of Inquiry.

The Worker member of Greece stated that the Government representative of Myanmar had not replied to the questions concerning the conviction of the two persons previously mentioned and requested that the minutes reflect that fact. He also queried the nature of the peace that the Government affirmed it wished to establish in the country.

The Worker members, in view of the continued failure of the Government to implement the conclusions of the Commission of Inquiry, called for the Committee to include its conclusions in a special paragraph of its report on the grounds of flagrant, persistent and repeated failure to comply with the provisions of a ratified Convention.

The Employer members observed that the case was particularly serious and that the Committee had already dealt with it on several occasions in the past by expressing its deep concern in a special paragraph of its report. It would, therefore, be consistent and appropriate once again to place its conclusions in a special paragraph for consistent failure to comply with the provisions of a ratified Convention.

The Committee decided to include this case in a special paragraph in its report and to mention it as a case of continued failure to implement a ratified Convention.

The Committee noted the written and oral information supplied by the Government, and the discussion which followed. It noted in particular the Government's position that the findings of the Commission of Inquiry and the Committee of Experts had no basis, and that the Report of the Director-General of 21 May 1999, supplied to members of the Governing Body, on the measures taken by the Government to comply with the recommendations of the Commission of Inquiry, was based on false and misleading information. The Committee also noted the issuance of Order No. 1/99 of 14 May 1999, directing that the power to requisition forced labour under the Towns Act, 1907, and the Village Act, 1907, not be exercised.

The Committee recalled the long history of the case and the series of actions taken by the ILO supervisory bodies, including the recommendations of the Commission of Inquiry established by the Governing Body. It considered that the explanations provided by the Government did not respond to the detailed and well-substantiated findings and recommendations of the Commission of Inquiry and the Committee of Experts. It noted with deep concern the findings of the Commission of Inquiry that there was convincing information available that forced and compulsory labour on a very large scale still occurred in Myanmar. The Committee regretted that the Government had not allowed the Commission of Inquiry to visit the country to verify the situation for itself. It could also have been the occasion for the Government to present its own position before the Commission in a very objective and impartial manner. It regretted that the Government had shown no inclination to cooperate with the ILO in this respect.

It called upon the Governing Body, the Committee of Experts and the Office to continue taking all possible measures to secure the observance by Myanmar of the recommendations of the Commission of Inquiry, which confirmed and expanded the Committee of Experts' own previous conclusions.

The Worker members, in view of the continued failure of the Government to implement the conclusions of the Commission of Inquiry, called for the Committee to include its conclusions in a special paragraph of its report on the grounds of flagrant, persistent and repeated failure to comply with the provisions of a ratified Convention.

The Employer members observed that the case was particularly serious and that the Committee had already dealt with it on several occasions in the past by expressing its deep concern in a special paragraph of its report. It would, therefore, be consistent and appropriate once again to place its conclusions in a special paragraph for consistent failure to comply with the provisions of a ratified Convention.

The Committee decided to include this case in a special paragraph in its report and to mention it as a case of continued failure to implement a ratified Convention.

Individual Case (CAS) - Discussion: 1996, Publication: 83rd ILC session (1996)

A Government representative of Myanmar referred to the government report provided to the Conference Committee last year wherein it had been mentioned that a board had been formed to monitor the progress made in reviewing the Village Act of 1908 and Towns Act of 1907. During the first half of 1996, the board had held three meetings as a result of which the draft of a new unified law had been submitted to the Laws Scrutiny Central Body for approval.

With regard to the practical application of the Convention, he recalled that the use of porters was the consequence of a decades-long armed conflict between Government and insurgent groups. However, today 15 out of 16 insurgent groups had abandoned armed struggle to join hands with the Government in national development. This encouraging situation had led to greatly diminished military operations and correspondingly the use of porters would come to an end. Indeed concrete measures had been taken by his Government to this end. Specific instructions had been issued since 1995 to the local authorities, regional commanders and ministries concerned, prohibiting the recruitment of the local populace in carrying out national development projects such as the construction of roads, bridges and railways as well as the building of dams and embankments without proper and fair remuneration or compensation. Henceforth, members of the Myanmar armed forces would take part in these development projects to serve the interest of the people, in addition to their primary responsibility of defending the country. Thus he sincerely believed that substantial progress had been made in the observance of the provisions of Convention No. 29.

The Workers' members pointed out that the Government of Myanmar had had a long-standing reliance on forced labour with no improvements to date. Indeed, there was total denial by the Government that there was any problem at all. Moreover, there was no effort at sincere cooperation with the ILO and no access for those from the ILO who attempted to visit the country.

The Workers' members indicated that this was the third time that Convention No. 29 had been discussed since 1992. In 1993, there was a representation under article 24 of the ILO Constitution which resulted in the Governing Body urging the Government to amend the Village Act and Towns Act and to ensure the formal repeal of the powers to impose compulsory labour in practice. Moreover, in 1993 the experts noted the report by a Special Rapporteur to the UN Commission on Human Rights, which documented the testimony of persons who were forced to provide labour in the construction of railroads and of roads or the clearing of jungle areas for the military. However, the economic crisis caused by the regime's policies had created a desperate need for hard currency which had led to a continued and massive use of forced labour.

One of the more insidious aspects of this development was that it was serving the interests and needs of Western multinational corporations. After all, 1996 was the "Year of the Tourist" in Myanmar. As a result, special use was being made of forced labour to build roads and hotels for tourists and to renovate temples. More specifically, conscripted workers had built the Mandalay Canal with their bare hands. Houses along the route had been demolished and local people with 2,000 "volunteers" were forced to work 24-hour shifts. Thirty thousand workers had built the new airport in Basang. Pipelines had been built for Unocal and its French counterpart Total on lands taken from villages. Overall around 800,000 people had "volunteered" their services to build such infrastructure for little or no remuneration.

To date, there had been no response whatsoever to the Experts' request for legislative and practical measures to be adopted to ensure compliance with Convention No. 29. This disdain for ILO standards and procedures required the strongest possible conclusions on the part of the Committee.

The Employers' members recalled that this case had been dealt with on several occasions. They considered it important to mention that the remarks of this Committee were not meant to cover the behaviour of enterprises but was directed at the conduct of governments having ratified Conventions and which were thereby held to enforce legislation.

Although Myanmar had ratified Convention No. 29 more than 40 years ago, the situation had only continued to worsen: the population was requisitioned for porterage and public works and subjected to forced labour.

While slightly modifying its previous comments, the Government continued to claim that it was a question of voluntary work, in keeping with millenary traditions, without at the same time being able to deny that requisitions of labour took place which were not subject to fines or other sanctions. Although the tripartite Committee set up by the Governing Body had requested immediate revision of the legislation in question and the elimination of any possibility whatsoever of recourse to forced labour, the situation remained unchanged.

Previously, the Government had claimed that the practice of forced labour, an inheritance of the colonial era, no longer existed and that the obsolete legislation in question would be repealed. Today, it affirmed that there was no longer forced labour and that it was the army which was carrying out the work in question. The Experts' report showed, however, that it was rather for the army itself that this work was being carried out. The Government no longer said that the legislation would be modified nor that things would change in practice. On the other hand, it rejected proposals for technical assistance from the ILO.

Consequently, the Employers' members considered that there was no cause for optimism. They expressed their very deep concern and insisted once more that Myanmar renounce forced labour both in law and in practice.

The Workers' member of Japan stressed that this was the oldest and most outrageous case outstanding before the Committee. Although it had been discussed time and time again in the Committee no progress had been witnessed. The Government had practically run out of arguments to defend the notorious system of compulsory porterage and the imposition of labour for public works. In its report, the Committee of Experts had recalled yet again that the Village Act and the Towns Act provided "for the exaction of labour and services, including porterage service, under the menace of a penalty from residents who have not offered themselves voluntarily". The Government had repeated its earlier promises that these laws were being reviewed for possible amendment. The fact remained that these Acts were still in force. He believed that the Committee should support the Governing Body in asking the Government to make the recommended fundamental changes without further delay.

The Workers' member of Brazil stated that the situation of forced labour in Myanmar was even more serious than in Brazil where at least one was informed about the violations of Convention No. 29 and other human rights violations. The speaker, pointing to the absence of any worker representation in the Myanmar delegation, recalled that trade union organizations in this country did not exist and that those who tried to organize workers did so at great personal risk or by knowing that they would finally go into exile.

The speaker stressed that the violations of human rights and of international labour standards in Myanmar were in direct proportion to the absence of trade unions there. Myanmar, which had no democratic regime, had resorted to forced labour as if it were a state policy. People built roads, railroads and bridges under the threat of bayonets, which was a sad repetition of history when the pyramids were constructed.

The speaker deplored the fact that the Government had tried to make the analysis of the situation much more complex by not responding to the questions raised by the Committee of Experts which also reflected the absence of any consideration for that Committee. Democracy had to be re-established in Myanmar. Convention No. 29 and other human and workers' rights had to be respected there. In view of the lack of goodwill on the part of the Government, the Committee had no choice but to mention this case once again in a special paragraph.

The Workers' member of the United States stated that the widespread systematic violation of Convention No. 29 by the Burmese military regime had been before the Committee twice in recent years. In both instances the case had proceeded in a similar fashion, for it had not been denied by the military regime that hundreds of thousands of Burmese citizens had been mobilized to rebuild the country's crumbling infrastructure with little or no pay. When confronted with this irrefutable and overwhelming evidence, the Government had claimed that contributing labour was a noble "Burmese tradition" and that many of the workers were convicted criminals who had "volunteered" to work in the open air. He pointed out that in Burma today the term "convicted criminal" could embrace someone guilty of having been elected to office, of handing out leaflets calling for democracy or attempting to exercise his or her basic right to freedom of association. He further emphasized that what existed in Burma was a vast system of forced labour, which to one degree or another ensnared virtually every family in the country, and that this situation had worsened during this "Year of the Tourist". Although the Committee had repeatedly demanded in the strongest possible terms that the military regime end immediately this widespread use of forced labour, the Government had responded with absolute and total disdain for these proceedings. The speaker saw no other conclusion for this case than one which once again expressed the Committee's extreme displeasure at the Government's continuing failure to bring itself into compliance with Convention No. 29.

The Workers' member of Greece, alluding to the comparison made between the situation in Myanmar and in Brazil, noted a fundamental difference. While everyone knew that racist practices existed in virtually all countries, the apartheid regime in South Africa had been condemned because it had institutionalized this practice. Likewise, in the case of Myanmar, on reading the report of the Committee of Experts and having listened to the Government representative, the impression was that the Government did not care about the opinion of the international community. It claimed to no longer resort to forced labour, but it remained silent when confronted with proof that its army requisitioned men, women, and children under such conditions and it did not note any change in terms of the legislation. The speaker, alluding to the involvement of multinational corporations in this context, invited the Conference Committee to note the full extent of the dramatic situation in this country, also referring to the Commission on Human Rights session of 24 April 1996 as well as the report of UNICEF on the situation of children in the world, in particular in Myanmar.

The Employers' members stressed that the discussion in the Committee was limited to the question of the extent to which governments fulfilled their obligations. National legislation applied to every entity in a country, be they national or multinational enterprises. Therefore, it would not be correct to mention individual enterprises by name to level specific criticism against them. If this were to be done, the nature of the Committee would be changed. In that eventuality, individual trade unions would have to be named as well. This Committee, as well as the Committee of Experts, had the mandate of examining what governments did and what they should be doing. Up to now, it had not been customary to name individual enterprises in this Committee.

The Workers' members pointed out that since the Committee was dealing with a systemic problem, it was perfectly appropriate to note some of the elements of the system that were involved here. Indeed, the Experts had noted these elements in their report on Brazil under Convention No. 29. There was a synergistic relationship between organizations that profited from repressive practices in a country and the country itself, which was not to say that those corporations fostered the repressive legislation but, if they were going to be part of the system, then it was perfectly appropriate to note it. The Workers' members could not accept a limitation on their ability to note the elements in a systemic problem.

The Workers' members registered their strong reservation to the notion that they could not cite elements of a systemic problem. However, before pursuing this issue any further, they wished to discuss this matter with the Employers' members in order to reach some understanding.

The Employers' members stated that they were ready to discuss this issue. However, things would change considerably in the Committee if their previous position, which had been the practice followed by the Committee thus far, were not maintained.

The Workers' members stressed once again that this was not a new procedure which had just been initiated.

The Workers' member of Germany supported the previous speakers, and drew the attention of the Committee to the contents of paragraph 7 of the report of the Committee of Experts, which showed how the Government had ignored the Committee's recommendations. While last year these very serious violations were the subject of a special paragraph, now the Government merely reiterated its denials, whereas incontestable sources proved that the army continued to resort to forced labour and direct and indirect threats, as well as other atrocities. The speaker requested that the Committee condemn the situation in the strongest possible terms.

The Government member of the United States stated that this was quite a straightforward if very distressing case. On the one hand, there was legislation that was clearly not in conformity with Convention No. 29. On the other hand, there was voluminous documentation that forced labour was being exacted on a massive scale, including in tourism-related construction projects, to build railroads and to serve as porters for the military. This forced labour was being used under the cruellest of conditions. Many persons had died from lack of food or medical treatment, unsanitary conditions and beatings. Moreover, these violations of human rights had been dealt with not only before the ILO but also before other fora, such as the UN Commission on Human Rights.

However, the Government merely confined itself to asserting that this was not forced labour but voluntary community service. In 1995, the Government had indicated that it had started the process of amending the laws in question. The Committee had tried to encourage the Government by adopting a special paragraph in its report last year stressing that the Government should urgently take all the necessary legal and practical measures. However, the Experts had again noted with concern this year that the summary report provided by the Government contained no indication whatsoever that concrete measures had been taken. It was becoming abundantly clear that the situation was nothing less than a continuing flagrant and wilful violation of a freely ratified ILO Convention. Rather, it was becoming more and more evident that the Government was just trying to create a smokescreen to mask the fact that, step by step, the situation in Myanmar was being reduced to a state of total lawlessness. Her Government supported the Committee's censure of the Myanmar Government's continued failure to adopt positive measures to comply with Convention No. 29 in law and in practice. She hoped that this censure would be expressed in the strongest possible terms. Her Government also supported any other action that the International Labour Organization might initiate to highlight this serious and long-standing problem.

The Government representative reiterated that a unified Village and Towns Act had been drafted and this draft law had been submitted to the Laws Scrutiny Central Body. This central body had been set up in 1991 with the express purpose of examining those laws which needed to be amended. To date, this central body had already examined a total of more than 200 laws and would examine the unified draft law as soon as possible. With regard to the practical application of Convention No. 29, as pointed out earlier, the contribution of labour for the benefit of the community was part of an age-old Myanmar tradition of voluntary labour. However, today, 15 groups who had been in insurgency against the Government of Myanmar had come back into the legal fold. So the armed forces were now using its members for major community development projects. Thus, a significant development was that only members of the armed forces would henceforth be taking part in these projects. Moreover, as Myanmar had embarked on a market economy since 1988, private enterprises were now being invited to construct major highways and certain railroads. This would do away with what was referred to as "forced labour" and create new job opportunities for the local populace. It was quite clear from the two above-mentioned developments that there was a positive evolution in Myanmar with regard to the practical application of Convention No. 29.

The Workers' members pointed out that the reply of the Government representative gave them no reason to change their original point of view. There was no doubt as to the serious nature of the violations that had taken place to date and that were still taking place. In view of the fact that there had been no real response to the recommendations of the special paragraph in the Committee's report of last year, the Workers' members strongly felt that there should be a special paragraph this year citing Myanmar for continued failure to implement the Convention.

The Employers' members deplored the fact that the second intervention of the Government representative had still not indicated that any progress had been made. A draft law dating back to 1991, the contents of which were not known, was to be submitted for examination to a body, the nature of which was imprecise. Noting the absence of any real progress, the Employers' members supported the proposal of the Workers' members to express the concern of the Committee in a special paragraph.

The Committee noted the information provided by the Government representative and the subsequent discussion. The Committee was deeply concerned by the serious situation prevailing in Myanmar over many years where systematically recourse was had to forced labour. The Committee 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. The Committee hoped that the Government would, without further delay, take all necessary measures to abolish recourse to forced labour and that it would provide next year all necessary detailed information on concrete measures taken or envisaged to abolish in law and in practice the possibility of imposing compulsory labour. The Committee decided to mention this case in its report as one of persistent failure to implement Convention No. 29 since over a period of several years there had been serious and continued discrepancies in law and in fact.

Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

The Government supplied the following information:

The Village Act and the Towns Act, the two laws in question administered by the General Administration Department of the Ministry of Home Affairs, are among the list of laws that were first reviewed on 29 January 1995, and again on 16 May 1995, by a Board comprising the Deputy Minister for Labour, as the Chairman, and representatives of the Prime Minister's Office, the Ministry of Foreign Affairs, the Attorney-General's Office and the General Administration Department as its members.

The Board found that these two laws were no longer in conformity with the prevailing conditions in the country, besides not being in line with the provisions of Convention No. 29. This finding is in agreement with the conclusion drawn by the tripartite committee set up by the Governing Body of the ILO to consider the representation made by the International Confederation of Free Trade Unions (ICFTU) under article 24 of the ILO Constitution alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29).

Consequently, the Government of Myanmar, in compliance with the request from the Governing Body, "to ensure that the relevant legislative texts, in particular, the Village Act and the Towns Act, are brought in line with the Convention" and "to ensure that formal repeal of powers to impose compulsory labour be followed up in practice and that those resorting to coercion in the recruitment of labour be punished", has started the process of amending these laws.

In addition, a Government representative referred to the written information.

The Workers' members indicated that this case had been retained due to the seriousness of the violations of the Convention and because recent developments were worrying; these concerns could not be eased by the information given by the Government. For more than 30 years, the Committee of Experts had denounced the forced labour that was taking place in this country. This case had been discussed in 1992. Further to this, the Governing Body had adopted the report of the committee established to examine the representation presented by the ICFTU under article 24 of the ILO Constitution. In fact, in spite of the various situations condemned by the Special Rapporteur on the situation of human rights in Myanmar in his report, the Government confined itself to stating that it wished to amend its Village Act and Towns Act, without filing any information on tangible improvements. The situation of forced labour had continued to deteriorate since the authorities had recourse to forced labour to build a touristic infrastructure, on the fallacious pretext that these constructions were needed for the population. Contrary to what the authorities said, there was no question here of voluntary work within the meaning of the exception provided for in Article 2(2)(e) of the Convention, which was aimed at maintenance work performed in the direct interest of the community concerned, as the Committee of Experts had pointed out. The Committee had further noted that the Village Act and the Towns Act allowed the requisitioning of inhabitants. In this country, the army requisitioned men, women and children to carry out auxiliary military tasks for long periods of time and in terrible conditions. It was to be feared that the Government would not undertake any amendment of its legislation, as long as it considered that it had not finished carrying out its ambitious projects. Thus, it would be desirable that the Conference Committee, like the Committee of Experts, request in its conclusions that the legislation be amended, that recourse to forced labour be abandoned, both in public works projects as well as in compulsory porterage services for the military and that the Government provide detailed information to the Committee of Experts.

The Employers' members concurred entirely with what had been stated by the Workers' members. They recalled that the Government had ratified this Convention nearly 40 years ago. They were concerned about the serious problems of compulsory porterage that was permitted under the Village Act and Towns Act and of forced labour in public works projects. Although the Government had been stating since 1967 that the authorities no longer applied the compulsory porterage provisions, it had blurred the distinction between what it considered to be compulsory labour and voluntary labour and had asked the Committee to believe that labour for public works projects was voluntary. Yet, it was reported in the Experts' observation that hundreds of porters had been killed by the military. The Experts had also commented on the existence of very poor working conditions and the numerous public works projects that had taken place in circumstances that were clearly less than voluntary. As a result, the Employers' members were somewhat sceptical about the real effect on ending forced labour of the Government's statement that the Village Act and Towns Act were being amended. While they urged the Government to amend these Acts as soon as possible, they considered that there was not going to be any real progress at all as long as the Government held the view that compulsory labour under the supervision of the public authorities and the military was really voluntary labour. The continuation of the Government's long-standing forced labour policies was clearly unacceptable and a violation of Convention No. 29 that had to be remedied as soon as possible.

The Workers' member of the United States indicated that while the Government representative had asserted that there was no forced labour in Myanmar there was ample evidence to the contrary, reflected in the voluminous documents examined by the Committee of Experts and other international bodies, such as the UN Commission on Human Rights. The Government representative had indicated that the Village Act and the Towns Act were in the process of being amended. However, only two days ago, according to a Reuters' report from a Thai military source, military authorities in south-east Myanmar were again rounding up civilians to work as porters in preparation for further attacks on ethnic minority rebels in the area. The speaker contended that there were similar stories about forced labour in Myanmar almost every week. Moreover, in the Experts' observation, the Government had stated that nearly 800,000 people had volunteered their services to build roads and railroads for little or no remuneration. However, the fact of the matter was that there were photographs of people in shackles, building what was now being called the "death railroad". There was also new information surfacing on the Government's $1 billion gas pipeline project paid for by the American corporation UNOCAL and its French counterpart, TOTAL. Villagers had not only lost their lands but had been forced to clear them to make way for the pipeline. Village after village was being razed in this manner by those who had lived in them their whole lives. This case reflected a vast system of forced labour which, to one degree or another, ensnared virtually every family in Myanmar. The stubborn refusal of the Government to dismantle its system of forced labour, as required by Convention No. 29, was an extremely serious matter.

The Workers' member of Australia pointed out that the recent resolution of the UN Commission on Human Rights, which expressed great concern at the continuing violation of human rights in Myanmar, and in particular forced labour, was sponsored by 27 governments and adopted unanimously by the 53 governments making up the Commission. It was therefore important that this Committee join with other international fora to add its weight to the condemnation of forced labour in contravention of Convention No. 29. Secondly, the current drive by the Government to promote tourism for 1996 required a range of infrastructure developments, including hotels, restaurants, tourist resorts and transportation, which meant that forced labour continued unabated. The Government, in a strategic and systematic way, was using forced labour to develop holiday resorts for tourists. For example, workers had been conscripted to clean out with bare hands the Mandalay canal, a canal ten kilometres long and more than three metres deep. Houses bordering the canal had been demolished and local people forced by military forces to work 24-hour shifts. A further 2,000 prisoners in chains had been brought in to assist. A BBC report in recent days had referred to hoards of men and women in Mandalay itself cleaning streets and historic buildings under armed guard. Some 30,000 workers had not been paid in the development of the new airport in Basang. These examples were but a few of the denial of fundamental and core labour rights of workers by the military government in Myanmar, in flagrant violation of Convention No. 29.

The Government member of the United States expressed her very grave concern about the Myanmar Government's application of Convention No. 29. While she understood the respected tradition of voluntary community service that existed in Myanmar, she pointed out that this case did not concern instances of true voluntary labour. Rather, people were being forcibly conscripted, taken from their villages and farms and being made to work, often without pay or food, under threat of heavy fines, and subjected to severe physical abuse. Some of these workers had died as a result of mistreatment and some had been murdered. The widespread and abusive use of forced labour in Myanmar was a phenomenon that was well documented by the international community. What was unacceptable and alarming was that not only had the Government failed to suppress the use of forced labour but apparently had even promoted the spread of this practice. While acknowledging that the Government had recognized that the Village Act and the Towns Act were not in conformity with Convention No. 29, and had embarked on the process of amending these texts, she stressed that these legal measures must be followed up in practice. It was absolutely essential that the Government issue the necessary orders to its military officers that compulsory porterage and forced imposition of labour for public works must cease. Alleged violations must be investigated rapidly and thoroughly, and those responsible for these violations must be prosecuted and punished. She urged the Government to undertake, without delay, all necessary measures to bring its law and practice into conformity with Convention No. 29 and, moreover, in so doing, to take full advantage of the technical assistance of the ILO.

The Workers' member of Greece pointed out that there were discrepancies, on the one hand, between the Government representative's statement according to which there was no forced labour in the country and that people worked voluntarily, and, on the other hand, the reality as reflected by detailed testimony including the report of the United Nations Special Rapporteur on the situation of human rights in Myanmar. All these overwhelming facts reflected the conditions in which thousands of individuals were in fact obliged to work. Faced with the seriousness of the situation, the Conference Committee had to go beyond its customary moderation to denounce once again in very strong terms a situation which unfortunately did not constitute an isolated case.

The Workers' member of Italy considered that the political changes referred to by the Government representatives should be understood negatively if the reality of the situation was to be acknowledged. In this country, where persons from the opposition such as the Nobel Peace Laureate, Ms. Aung San Suu Kyi, were imprisoned, the military forced workers to work in public works projects which had cost innumerable human lives, as confirmed by the Special Rapporteur on the situation of human rights in this country. It was appropriate to note that children were also forced to work and that the rate of enrolment of children in schools had dropped considerably, with 40 per cent of children not finishing compulsory education. The speaker concluded by calling on private enterprises and even on States to exert pressure on this Government so that the situation would change.

The Government member of Australia joined previous speakers in expressing his grave concern at the violations of human rights in Myanmar. He was particularly concerned about the cases of forced labour in public works and compulsory porterage services for the military. He strongly urged the Government to guarantee full respect of human rights and fundamental freedoms and to meet without delay its obligations under Convention No. 29.

The Government representative pointed out that since Myanmar was a developing country and nearly 70 per cent of the population were agricultural workers, the Government was developing the infrastructure of the country in order to alleviate poverty and to improve the socio-economic conditions of the people. Indeed, many projects, such as the building of roads, railroads, bridges, dams, and reservoirs, were being carried out throughout the country, especially in the border regions where armed groups once operated. If the Government was really forcing the people to work in the projects as alleged, why had so many armed groups that had been fighting against successive governments for so many decades chosen to join hands with the Government for the development of their region? The answer could only be that the projects undertaken by the Government were really only for the good of the people. It was not for the Government and it was not for the military. In the tradition of using voluntary labour for the community development of each area or region, personnel from military units stationed in the area always took part in volunteering their labour. Government employees from the ministry concerned also participated.

The Government representative then referred to the UN Special Rapporteur mentioned in the Experts' observation. According to the Government representative, the Special Rapporteur who had visited a railroad project had indicated in his report that workers had been given work by the piece rather than by the day and that working hours were from 8 a.m. to 11 a.m. and from 1 p.m. to 4 p.m., and that each round of duty normally lasted one or two weeks. The workers were each paid 30 kyats for a piece of one cubic metre, which meant a working day for one or two persons. Wages were paid by the Government to the whole village at the end of the contribution.The Special Rapporteur had the opportunity to visit the dispensary built near the construction site to assist workers who were required to rest from work. When the illness of the workers was serious, the authorities released the sick worker from duty and sent him to an appropriate hospital. During his visit to Myanmar in November last year, the Special Rapporteur travelled to Magwe State to visit the newly completed Pakokku-Myaing-Myo Soe section of the Pakokku-Gangaw-Kalay railway. The Special Rapporteur had the opportunity to speak with the people assembling around the railway station at which the train stopped. The Special Rapporteur had reported to the Committee as follows: "Apparently, the local population seemed to enjoy the opening ceremony and was happy to benefit from the new facilities." The speaker indicated that for their contribution towards community development, remuneration was given to voluntary workers by the Government, either on a piece-rate basis or at the prevailing wage rate. In some cases, the authorities disbursed a lump sum of money for the benefit of the whole community. The Government had, up to now, disbursed a total of 133.47 million kyats to the local population who had contributed labour in the various railroad projects. A medical doctor had been assigned to each of the sections by the Myanma Railways during the construction of the railway lines, and the Chief Medical Officer had toured the area at least once a month in order to provide health care for the local populace. In case of injuries and casualties arising from the construction work, compensation was paid by the Myanma Railways to the persons concerned. With regard to the use by the military of porters, the reason why the security forces had had to use such civilian labourers was that the Government had to deal with armed groups that had terrorized the lives of Myanmar citizens. However, the Government had been inviting the armed groups to join hands with it in developing their regions and 14 such groups had done so and the problem of having to use recruited labourers no longer existed in the areas once occupied by these groups. It was not true that porters were treated harshly and inhumanely. They were recruited and employed by security forces based on the following three criteria: they had to be unemployed, physically fit and a reasonable amount of wages had to be agreed on beforehand. Apart from daily wages and food rations, they were entitled to receive rail and steamer travelling warrants or actual money to cover the cost of transport to and from their homes, and the respective military unit had the responsibility of providing accommodation, medical coverage, etc. In the unlikely event of a loss of life or limb, they or their families were compensated in accordance with the Workers' Compensation Act.

With regard to prison labour, in a great number of countries throughout the world, sentences were passed by courts of law to include compulsory labour for serious offences under national law. In Myanmar, such sentences were part of the rehabilitation process. Furthermore, prisoners could enjoy reduction of sentences through contribution of labour. For example, on 25 March 1995, the Ministry of Home Affairs issued an order which stated that the sentences of over 23,000 prisoners, who had diligently contributed their labour at the various regional development work camps, had been reduced by one-third under section 401(1) of the Penal Code. As of April 1995, over 5,600 prisoners had been released. The Special Rapporteur had witnessed one of these voluntary labour worksites during his visit to Myanmar last year and had reflected this in his report to the 51st Session of the Commission on Human Rights, as follows: "Around 200 unchained prisoners were involved in the building of the moat by piling and transporting rocks. They seemed in good health. Prisoners were seen working hand-in-hand with armed forces personnel and local civilians. Generally, prisoners as well as soldiers worked eight hours a day on a voluntary basis. Once the defined part of the work was accomplished, a wage was distributed among the prisoners who were involved in the labour. Food was provided free and they were entitled to three meals a day." Another point the speaker wished to make was that disciplinary action was taken against those members of the security forces who had broken the law. Finally, the speaker pointed out that Myanmar had ratified the United Nations Convention on the Rights of the Child on 16 July 1991 and that a Law respecting children had been promulgated on 14 July 1993. Committees concerning the right of the child, at the national, state and district level, had been formed and up to now there had been no complaints about forced child labour. Schools were opened in Myanmar and the children were attending them as usual. There was no evidence of any drop in enrolment. If a person was found guilty of forcing a child to work in life-threatening or dangerous conditions, or to engage in work that would result in contracting diseases, that person would be sentenced to six months' imprisonment or a fine.

The Workers' members suggested that the conclusions adopted by the Committee should appear in a special paragraph of its General Report, so as to have more of an impact, given the seriousness of the situation in the country and the absence of any progress with regard to forced labour.

The Employers' members summed up this case and the Government representative's view as "the end justifies the means". Economic development and development of infrastructure, in the Government's mind, justified the use of forced labour. However, Myanmar had ratified this Convention 40 years ago and it had an international obligation to respect. In this Committee, special paragraphs were reserved for very serious cases. This case, involving forced labour, was such a case and therefore the conclusions of this case should appear in a special paragraph in the Committee's report.

The Committee took note of the statement made by the Government representative that measures were under way for amending the Village Act and Towns Act which contained provisions contravening Convention No. 29. It recalled that the Government had been told about this for nearly 30 years. It also recalled the adoption in 1994, by the Governing Body, of the recommendations of its tripartite Committee for the repeal of the offensive provisions. The Committee could not find a way to agree with the position of the Government, as reported to the Committee of Experts, that what was being alleged to be forced labour was actually voluntary labour. The Committee further recalled the report of the United Nations Special Rapporteur on human rights in Myanmar and deprecated a situation in Myanmar as reflected in this report. In these circumstances, the Committee called upon the Government to urgently repeal the offensive legal provisions under the Village Act and the Towns Act 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 to the Committee of Experts on legislative and practical measures adopted to fall in line with Convention No. 29. The Committee also decided to mention this conclusion in a special paragraph of its General Report.

Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

The Government has communicated the following information:

With reference to the comments made by the International Confederation of Free Trade Unions (ICFTU) concerning the practice of compulsory portering, the Government wishes to indicate that it is true that armed forces have to employ porters for transportation of equipment and things over difficult terrain in remote jungles and mountains near the frontiers where military campaigns against the armed insurgents are launched. Where the terrain is inaccessible by car or other motorised vehicles, the Myanmar army has to employ porters for transport of supplies and equipment. However, it is not true that porters are treated harshly and inhumanely by the Myanmar armed forces. All these allegations about the treatment of porters by the armed forces are untrue. They mainly emanate from outside sources with ulterior political motives.

As a matter of fact, there are volunteer porters and professional porters who offer to work as porters on behalf of others to earn their living. Porters are recruited and employed by the armed forces after consultation with local authorities. This has been in practice in Myanmar since she regained her independence in 1948. Recruitment and employment are in accordance with section 8, subsection 1(n), of the Village Act of 1908 and section 7, subsection 1(m), of the Town Acts of 1907. Recruitment is based on the following three criteria:

(a) they must be unemployed;

(b) they must be physically fit to work as porters;

(c) a reasonable amount of wages must be fixed and agreed to beforehand.

Porters thus recruited are never required to accompany the troops to the actual scene of battles; neither are they exposed to danger. They are sent back as soon as their assignment is completed. They are paid equitably and in the unlikely event of a loss of life or limb unconnected with any armed conflict they or their families are compensated in accordance with the Workmen's Compensation Act of 1925. They are entitled to medical treatment like soldiers in accordance with the Armed Forces Act. They are placed in safe places during operations.

In addition, a Government representative of Myanmar referred to written information provided by his Government and stressed that in his country there was no coercion with regard to the employment of workers. Comprehensive and elaborate laws effectively prevented the use of forced labour. In response to the allegations made against his Government that equated the use of porters by the armed forces of Myanmar with forced labour, he stressed that the use of porters was not the same as the use of forced labour. He said that the allegation emanated from outside sources who had ulterior political motives.

The Workers' members stated that they regretted hearing the Government representative say that there was no forced labour in Myanmar. They referred to the report of the Committee of Experts which had noted the comments of the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention in Myanmar. The ICFTU had indicated that the practice of compulsory portering was widespread and involved thousands of workers, who were forcibly recruited and harshly exploited. These porters were rarely paid, and were forced to carry excessive loads and endure physical hardship and danger. Some died as a result or were killed, sometimes during the course of military actions. They noted that the comments of the ICFTU were detailed and specific, and that it was customary for the Committee to rely on the accuracy of the Committee of Experts' reports. However, they acknowledged that there was a contradiction between the facts referred to in the report and the statement by the Government representative. They expressed the hope that the Committee of Experts would receive a detailed report on this matter.

The Employers' members stated that they would not go as far as the Workers' members in their assessment of the situation at the time. The Committee of Experts' comments had summarised serious allegations made against the Government, and the Government was responding to the request for its comments. Upon review, the Committee of Experts may decide that further information should be provided and make an explicit determination regarding the merits of their claims. They appreciated that the Government had cooperated by providing some information, and asked it to send any other relevant information to the Committee of Experts so that it might reach a conclusion as to whether or not the Convention had been contravened.

A Workers' member of France stated that he was a member of the organisation which had made the comments, and was surprised at the reaction of the Government representative. He emphasised that the ICFTU had provided all the elements of proof for this very serious case. He believed that the conclusions of the Committee should be pertinent and uncompromising with respect to the necessity to provide evidence of both the Government's will and practical measures that it would take to remedy a situation which he was certain continued to exist today.

The Government representative reiterated that the porters were not forced labour, which did not exist in his country. He stated that even if the employment of porters by the armed forces was considered to be forced labour, such porters had ceased to be employed by the military, because the Government was no longer conducting military campaigns. He stressed that the Government wished to establish national unity and peace, and to remove all differences by amicable discussion rather than fighting among the different races in his country.

The Workers' members disagreed with the observations made by the Employers' members, because in their view a presumption resulted from the fact that the Committee of Experts had set out the facts as stated in its report, and had expressed its hope that corrective measures would be taken. Although a written reply had been supplied by the Government beyond the prescribed time-limit that had not been referred to in the report, it was similar in content, although more expansive than that to which the Government representative had related. They suggested that what had been stated in the Committee and the written reply be forwarded to the Committee of Experts for its evaluation and report.

The Committee noted that the Government had not supplied a report within the prescribed time. It also took note of the written and oral information given by the Government. In view of the seriousness of the allegations mentioned by the Committee of Experts, on the one hand, and the lack of reporting by the Government, on the other hand, it urged the Government to report in full to the ILO in the very near future.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Follow-up to the recommendations of the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

The Committee notes that in the context of its follow-up to the situation of Myanmar as regards the elimination of forced labour (following the 2013 Resolution of the International Labour Conference concerning remaining measures on the subject of Myanmar under article 33 of the ILO Constitution), in March 2022, the Governing Body decided of its own motion to establish a Commission of Inquiry concerning non-observance by Myanmar of the Convention as well as the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee notes the detailed report issued by the Commission of Inquiry on 4 August 2023, which was noted by the Governing Body in its 349th Session (November 2023).

The Committee notes that in its report the Commission of Inquiry concluded that the following violations of the Convention existed (paragraphs 595–634):

• The continuing systematic and widespread use by the Myanmar military of residents, including members of the Rohingya community, to perform a range of different types of work or service, including as porters, guides, and human shields, as well as for cultivation, the construction and maintenance of military camps or installations, and the provision of transport, accommodation, food, or domestic work; such practices not falling under the scope of the exception of Article 2(2)(d) no any other exceptions provided for under Article 2(2) of the Convention.
• The exaction of prison labour from persons, in particular those having expressed opinions opposing the military, who have been convicted following legal procedures that manifestly lacked independence, impartiality, and due process of law, which is not covered by the exception contained in Article 2(2)(c) of the Convention.
• Services required by the military authorities from businesses during days of “silent strikes” (people staying indoors on a designated day and not engaging in any outside activity) that amount to forced or compulsory labour within the meaning of the Convention.
• The lack of review of article 359 of the Constitution which allows for the exaction of forced labour in the context of duties assigned by the Union in accordance with the law in the interest of the people, and of the People’s Military Service Law (2010) which allows for the use of military conscripts for work that is not of a purely military nature.
• The lack of adequate and dissuasive criminal sanctions for the exaction of compulsory labour under section 374 of the Penal Code and section 27A of the Ward or Village Tract Administration Law which provide for a penalty of imprisonment of up to one year or a fine.
• A deteriorating enforcement of the legal prohibition of forced labour and the fact that victims of forced labour imposed by the military fear retaliations if they bring forward complaints.

The Committee also notes that based on the above-mentioned findings, the Commission of Inquiry urged the military authorities to (paragraph 644):

• Act to end the exaction of all forms of forced or compulsory labour by the army and its associated armed forces and groups, including any forced labour exacted from ethnic, religious or other minorities; and to end any forced recruitment into the military.
• Cease any action interfering with the freedom of business to open and close their establishments.
• Cease with immediate effect the exaction of prison labour as a consequence of a criminal conviction imposed since 1 February 2021 through procedures manifestly lacking independence, impartiality and due process guarantees.

The Commission of Inquiry also recommended that Myanmar (paragraph 650):

• Assess the functioning of the national authorities and mechanisms responsible for the suppression of forced or compulsory labour and the enforcement of the relevant legislation, with the participation of workers’ and employers’ organizations, and take the necessary measures to strengthen their capacity and cooperation; and ensure that workers and employers’ organizations have access to such authorities to report any practice contrary to the Convention.
• Take specific measures to end the exaction of forced labour from Rohingya women and men and other ethnic or religious minorities.
• Ensure that any future system for compulsory military service or any other national service obligation and any restrictions on civil servants, including military personnel, to resign from their positions are implemented in accordance with the Convention.
• Revise its national legislation prohibiting forced labour to ensure that it provides for penalties that are really adequate and dissuasive.

The Committee notes that in a communication dated 29 September 2023, the military authorities indicated to the Governing Body that Myanmar’s position regarding the Commissions of Inquiry’s recommendations would be communicated within three months.

The Committee deeply deplores that although the imposition of forced labour on the population in the country has continuously been the subject of close examination for many years by this Committee, the Committee on the Application of Standards of the Conference, two Commissions of Inquiry, as well as by the Governing Body, this practice has continued and has even exacerbated after the military takeover on 1 February 2021, as indicated in the report of the Commission of Inquiry of 2023.

Therefore, the Committee strongly urges the military authorities to take all the necessary measures to immediately put an end to all forms of forced or compulsory labour identified above; ensure without delay full compliance with the Convention, both in law and in practice; and take steps to fully and effectively implement the recommendations made by the Commission of Inquiry. In this regard, the Committee specifically recalls the importance of reviewing article 359 of the Constitution that allows for the exaction of forced labour to bring it into conformity with the Convention. The Committee strongly urges the military authorities to take the measures commensurate with the extreme seriousness of the situation and ensure that victims of forced labour are duly recognized as such, given access to the appropriate complaint mechanisms and granted compensation and protection against reprisal. The Committee expects that the military authorities will provide detailed information on the measures taken for the implementation of the recommendations of the Commission of Inquiry.

[The Government is asked to reply in full to the present comments in 2024 .]

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year as well as on the basis of the information at its disposal in 2019.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Institutional framework and law enforcement. The Committee previously noted that according to sections 24 and 25 of the Anti-Trafficking in Persons Act of 2005, persons found guilty of trafficking women, children and youth shall be punished with imprisonment from a minimum of ten years to life imprisonment and a fine, while those who are found guilty of trafficking other persons shall be punished with imprisonment from a minimum term of five years to a maximum term of ten years, and may also be liable to a fine. It also noted that a Central Body for Suppression of Trafficking in Persons (CBTIP) was established with three working groups functioning under it and an Anti-Trafficking in Persons Division was created under the CBTIP. The Committee requested the Government to provide information on the activities undertaken by the three working groups and the Anti-Trafficking in Persons Division under the CBTIP.

The Committee notes the Government’s information in its report that in 2018 the CBTIP conducted: 67 awareness-raising talks on trafficking in persons in the various regions and states; 273 awareness-raising talks in various departments attended by over 25,000 participants; 1,081 such talks in schools which were attended by over 375,000 participants; 3,386 such talks for the public which were attended by over 411, 000 participants; and disseminated over 888,000 pamphlets on trafficking in persons. In addition, from April 2019 to July 2020, the Myanmar police and the Anti Trafficking in Persons Division conducted awareness-raising programmes on trafficking in persons for an estimated 523,444 people and distributed 568,591 pamphlets. The Government indicates that in 2019, capacity-building workshops and training were conducted for officials from the Anti-Trafficking in Persons Division and the State/regional police force in cooperation with the ILO, the International Organisation for Migration (IOM), the Japan International Cooperation Agency, the United Nations Office on Drugs and Crime, UNICEF and the EU. Moreover, a basic investigation course on trafficking in persons was provided to 88 trainees in the Anti-Trafficking in Persons Division and several talks were delivered to over 19,000 participants of the civil service department, police training schools and other relevant departments and states.

According to the statistical information provided by the Government, from 2018 to 2019, 46 persons were arrested in 29 cases involving 67 victims of trafficking in persons for forced labour, of which 17 persons were victims of trafficking on fishing boats. Of these, 13 cases were related to trafficking of persons to Malaysia (2), Thailand (3) and to China (8). In 20 cases action was taken under the Anti-Trafficking Law. From 2018 to July 2019, 2,615 reports of trafficking of persons were received by the hotline telephone and in seven cases action was taken under the Anti-Trafficking Law. Furthermore, from April 2019 to July 2020, 248 cases of trafficking in persons were reported and action was taken against 751 perpetrators, including 244 men and 507 women. In this regard, the Committee notes the information contained in a report on the official website of the President of Myanmar, that the country’s human trafficking cases were found to be 75.24 per cent in forced marriages and 13.59 per cent for forced prostitution and 8.74 per cent for forced labour. By countries of destination, 79.61 per cent were related to China, 1.46 per cent to Thailand and 18.93 per cent within Myanmar. The Committee requests the Government to continue providing information on the application of sections 24 and 25 of the Anti-Trafficking Law in practice, including the number of investigations, prosecutions and convictions, as well as the specific sanctions imposed. It also requests the Government to continue providing information on the measures taken to strengthen the capacities of the law enforcement officials as well as to provide information on the activities undertaken, including by the Anti-Trafficking in Persons Division under the CBTIP to combat trafficking in persons.

2. Programmes of action and bilateral cooperation. In its previous comments the Committee noted that bilateral cooperation on cross-border trafficking was concluded with Thailand and China and a third five-year National Plan of Action (NPA) to combat human trafficking for 2017–2021 was adopted. The Committee requested the Government to provide information on the concrete measures taken within the framework of the NPA 2017–2021 to combat trafficking in persons as well as the actions carried out through its bilateral cooperation with neighbouring countries.

The Committee notes the Government’s information that within the framework of the NPA, the National Task Force secretary, the Police Brigadier and the Head of the Anti-Trafficking in Persons Division drafted an annual work plan 2019, for combating trafficking of persons. Following the implementation of this work plan, the Department of Fishery established and implemented a pilot project for preventing trafficking in persons in the fishing industry; carried out awareness-raising measures for fishing business men, private factories, and fishing boat and factory owners; and took measures to cancel the business licences of business men who committed labour exploitation in domestic fishing industries. The Committee also notes the detailed information provided by the Government on the various activities undertaken by the Government in cooperation with other countries in its fight against trafficking in persons, in particular various training courses and workshops on strengthening the capacity and coordination on prevention and investigation of trafficking in persons for law enforcement officials conducted in India, China, Lao People’s Democratic Republic, Philippines, Thailand, Singapore, Indonesia, Malaysia and Viet Nam. It also notes the Government’s information that the seventh Myanmar Anti-Trafficking in Persons Day was observed on 13 November 2019. The Committee encourages the Government to continue its efforts to combat trafficking in persons, including through the implementation of the NPA 2017-2021 and through actions carried out within the bilateral cooperation agreements with its neighbouring countries. It requests the Government to continue to provide information on the measures taken and the results achieved in this regard.

3. Protection and assistance. The Committee notes the Government’s information that in 2019, a total of 172 victims of trafficking were provided with assistance, including financial assistance for small scale businesses to 102 victims and for livestock breeding to 53 victims; vocational assistance to six; assistance in the agricultural sector to eight; education assistance to two and health assistance to one victim. Moreover, in 2019, 312 victims (308 female victims and four boys), and from January to July 2020, 113 victims of trafficking (93 women and 19 girls) were repatriated from China and reintegrated with their families. The Government also indicates that shelter, care, legal and psycho-social support was provided to 17 victims of internal trafficking and 68 victims of trafficking who were to testify before the courts in China. The Government further indicates that during the period from January to July 2020, MMK 2.6 million from the State budget was provided to 26 victims of trafficking. The Government further notes the information from a 2018 report of the International Organisation for Migration (IOM) the Myanmar’s Ministry of Social Welfare, Relief and Resettlement, with the support of the IOM launched a manual of standard operating procedures for case management, repatriation and reintegration of victims of trafficking from Thailand. To date, Myanmar and Thailand have coordinated for the safe and dignified return of 500 victims of trafficking from Thailand to Myanmar.  The Committee strongly encourages the Government to continue taking effective measures to ensure that victims of trafficking are provided with appropriate protection and services, and to provide information on the number of persons benefiting from these services.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Myanmar (ratification: 1955)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019. It also notes the detailed discussion which took place at the 108th Session of the Conference Committee on the Application of Standards in June 2019, concerning the application by Myanmar of the Convention.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

Articles 1(1), 2(1) and 25 of the Convention. Elimination of all forms of forced labour. 1. Engagement of the ILO regarding the elimination of forced labour. (a) Historical background. In March 1997, a Commission of Inquiry was established under article 26 of the ILO Constitution to address the forced labour situation in Myanmar. As reported to the ILO Governing Body, forced labour had taken various forms in the country over the years, including forced labour in conflict zones, as well as for public and private undertakings. In its recommendations, the Commission of Inquiry urged the Government to take the necessary steps to ensure that: (i) the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention; (ii) in practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and (iii) the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced.

Since then, the issue has been the focus of cooperation between the Government and the ILO for more than a decade. In 2002, an Understanding was agreed between the Government and the ILO, which permitted the appointment of an ILO liaison officer. Later in 2007, the Supplementary Understanding (SU) was signed, in particular, to set out a complaints mechanism with the objective “to formally offer the possibility to victims of forced labour to channel their complaints through the services of the Liaison Officer to the competent authorities with a view to seeking remedies available under the relevant legislation and in accordance with the Convention”. In addition, in 2012, the ILO concluded a Memorandum of Understanding (MoU) on a Joint Strategy for the Elimination of Forced Labour by 2015, which provided a basis for seven interrelated action plans. The ILO also participated in the Country Task Force on Monitoring and Reporting on underage recruitment issues.

(b) Recent developments. The Action Plan for the elimination of all forms of forced labour, 2018 and the SU, which provided for a complaints mechanism, expired in December 2018. On 21 September 2018, the Government, the workers’ and employers’ organizations and the ILO signed the MoU on Decent Work Country Programme (DWCP) (2018–21). The significant implementation outputs, as indicated in the DWCP document, include institutionalization of national forced labour complaints mechanisms and strengthened protection against unacceptable forms of work, in particular forced and child labour by 2021. The Committee notes that in the course of the discussion in October–November 2019, the Governing Body noted, in respect of progress in the elimination of the use of forced labour that the number of complaints received had continued to decrease since 2016 suggesting progress towards elimination of underage recruitment, which generally accounted for the highest proportion of complaints received. It noted that in 2019 the ILO received 108 forced labour complaints, 48 of which have been assessed as being within the definition of forced labour while there were no complaints received of forced labour related to the involuntary use of civilians as guides and porters from conflict areas. Very few reports of forced labour in the private sector have been received since March 2019. The Governing Body also noted that the proposal for the establishment of a National Complaints Mechanism (NCM) was approved by the Government by a letter dated 7 August 2019 (GB.337/INS/9). The Governing Body noted that the ILO stressed on the following elements as necessary for a credible and effective complaints mechanism: (a) impartiality in the assessment and investigation of complaints; (b) guaranteed protection of victims; (c) credible accountability; (d) decentralization of responsibility to eliminate forced labour; and (e) awareness-raising programmes, particularly for those living in remote and conflict-affected areas. Although the Government had publicly advertised its intention to establish an NCM, no reference had been made to complainants being able to continue to submit complaints to the ILO. The GB also noted that while the Government had made efforts to develop interim procedures for dealing with complaints, a framework for the development of the NCM and an action plan for the elimination of forced labour under the DWCP, the victim protection measures remained unclear and the decentralization responsibility to state and regional governments to eliminate forced labour still needed to be addressed.

2. Application of the Convention in law and in practice. In its previous comments, the Committee noted that the Ward or Village Tract Administration Act of 2012, which repealed the Village Act and the Towns Act of 1907 makes the use of forced labour by any person a criminal offence punishable with imprisonment and fines (section 27A). It noted that no action had been taken to amend article 359 of the Constitution (Chapter VIII – Citizenship, fundamental rights and duties of citizens), which exempts from the prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public” and could be interpreted in such a way as to allow a generalized exaction of forced labour from the population. It also noted that the developments within the peace process, such as the National Ceasefire Agreement of 2015 as well as the ILO initiation with the Government and the Ethnic Armed groups which resulted in two non-state armed groups committing to end forced labour, led to a significant decrease in the numbers of reported cases of forced recruitment for military purposes by both the security forces and armed groups. The Committee, however, noted from the Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar of 17 September 2018 (A/HRC/39/CRP.2) that the use of forced labour by the Tatmadaw (the armed forces of Myanmar) persisted, particularly in Kachin and Shan States, as well as among the ethnic Rakhine and Rohingya. It noted that in many instances, the Tatmadaw arrived in a village and took villagers directly from their homes or from the areas surrounding their village while they were fishing, farming, running errands or travelling while in some cases, this was done in an organized way, such as house by house, on the basis of a quota for each family, through a list, or with the cooperation of village leaders. Persons subjected to forced labour were required to perform a variety of tasks and the duration varied from a few days to months. Many of them were required to act as porters, carrying heavy packages including food, clothes and in some cases weapons. Other common types of work included digging trenches, cleaning, cooking, collecting firewood, cutting trees, and constructing roads or buildings in military compounds. Victims were also sometimes required to fight or participate in hostilities. Often, victims were given insufficient food of poor quality or were not able to eat at all. They did not have access to water and were kept in inadequate accommodation, including in the open air without bedding and without adequate sanitary facilities. Victims were subjected to violence if they resisted, worked slowly or rested. Particularly, female victims also faced sexual violence (paragraphs 258–273, 412–424 and 614–615). The Committee noted with deep concern the persistence of forced labour imposed by the Tatmadaw in Kachin and Shan States, as well as among the ethnic Rakhine and Rohingya. It urged the Government to strengthen its efforts to ensure the elimination of forced labour in all its forms, in both law and practice, particularly the forced labour imposed by the Tatmadaw; to take the necessary measures to ensure the strict application of the provisions of the Ward or Village Tract Administration Act of 2012 and the Penal Code; as well as to provide information on any progress made regarding the amendment to article 359 of the Constitution.

The Committee notes that, in its observations, the ITUC stated that forced labour is exacted in a systematic and continuous manner and that this practice is also persistent in the private sector, especially in the agricultural sector (fisheries, sugarcane, beans) and in the jade industry. The ITUC further highlights the plight of the Rohingya population, nearly 700,000 of them, who were expelled from the Rakhine State following the so-called clearance operations, commenced in 2017, and who are at an increased risk of falling victims to forced labour by both state and non-state actors.

The Committee notes the statement made by the Government representative of Myanmar to the Conference Committee that a total of ten ethnic armed forces have already signed the National Ceasefire Agreement and a unilateral ceasefire has been announced in the States of Kachin and Shan from December 2018 to April 2019. The Government representative further indicated that interim procedures for continuously receiving complaints are in place and that a Joint Parliamentary Committee was established to amend the Constitution. The Worker members, in their statement to the Conference Committee, alleged that the Government failed to implement most of the activities designed under the 2012 and 2018 action plans. The Committee notes that the Conference Committee, in its concluding observations, while welcoming the efforts in eliminating forced labour, expressed concern over the persistent use of forced labour and therefore urged the Government to take all necessary measures to ensure that forced labour is not imposed in practice by the military or civilian authorities; to ensure that victims of forced labour have access to effective remedies and comprehensive victim support without fear of retaliation; to increase the visibility of awareness-building and capacity-building activities for the general public and administrative authorities to deter the use of forced labour; to provide detailed information on the progress made within the DWCP; and to intensify its cooperation with the ILO through the development of a time-bound action plan for the establishment of, and transition to, an effective complaints handling procedure.

The Committee notes the Government’s information in its report that within the framework of the DWCP, in January 2019, a Training of Trainers on the Elimination of Forced Labour was conducted with representatives from the High Level Working Group (HLWG), members of the Technical Working Group (TWG) and representatives of the ILO. Moreover, a knowledge-sharing workshop was held during the same period with 50 representatives, including members from the HLWG, TWG, representatives of ILO, Government, and employers’ and workers’ organizations to share good practices of other countries on developing the National Complaints Mechanism (NCM). The Government indicates that the interim procedures for receiving and resolving forced labour complaints are, and will be, carried out by the HLWG until the establishment of the NCM.

In this regard, the Committee takes due note of the Government’s indication in its supplementary information that the NCM has been established and operational since February 2020. A national committee was set up in order to effectively implement the NCM, comprising representatives from 16 ministries and the Myanmar Human Rights Commission, as well as representatives from the Union of the Myanmar Federation of Chambers of Commerce and Industry (UMFCCI), the Confederation of Trade Unions Myanmar (CTUM), the Agriculture and Farmers Federation of Myanmar (Food Allied Workers) (AFFM-IUF) and the Myanmar Industries Craft and Services Trade Unions Federation (MICS-TUsF). An orientation session, facilitated by the ILO, was conducted for the members of the national committee for the NCM. Moreover, training on identifying and investigating forced labour cases, as well as on the international definition of forced labour and international humanitarian law was provided to 38 officials and staff from the various ministries and departments that receive complaints on forced labour. The Committee also notes the Government’s information that the NCM resolved 20 cases out of the 38 cases received in 2020, including the 24 cases received during the operation of the interim complaints mechanism.

The Committee also notes the Government’s information that from July 2018 to August 2019, a total of 6,423 awareness-raising workshops on forced labour were conducted for an estimated 507,935 people in related townships across the country and 115,113 posters were distributed. Moreover, to prevent the use of forced labour in the private sector, from January 2018 to July 2019, 1,903 knowledge-sharing workshops were conducted with 92,698 participants from 4,252 factories, shops, establishments and training centres.

Regarding the amendment to article 359 of the Constitution which exempts from the prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public”, the Committee notes the Government’s information that the proposal was brought before the Pyidaungsu Hluttaw (Assembly of the Union) on 19 March 2020. However, the Committee notes with regret the Government’s statement that although 409 of the 654 representatives voted in favour of it, the article could not be amended as the required vote of more than 75 per cent of all the representatives of the Assembly was not received.

The Government further indicates that up until July 2020, 1,105 cases concerning underage recruitment were received under the SU complaints mechanism, of which 707 cases have been resolved. The Committee notes that from April 2019 to July 2020, ten military officers and eight military personnel were punished for the irregular recruitment of children. Moreover, 23 underage children who were irregularly recruited were released. The Committee, however, notes an absence of information on the concrete penalties applied to the ten military officers and eight military personnel for the irregular recruitment of children.

It further notes the Government’s information that no one was punished under the Ward or Village Tract Administration Act and the Penal Code from July 2018 to July 2019. While taking note of the measures taken by the Government towards the elimination of all forms of forced labour, the Committee once again reminds the Government that, by virtue of Article 25 of the Convention, the exaction of forced or compulsory labour shall be punishable as a penal offence, and the penalties imposed by law shall be really adequate and strictly enforced.

The Committee therefore strongly urges the Government to take the necessary measures to ensure the strict application of the national legislation, particularly the provisions of the Ward or Village Tract Administration Act of 2012 and the Penal Code, so that sufficiently dissuasive penalties of imprisonment are imposed and enforced against perpetrators in all cases. In this regard, the Committee requests the Government to provide information on the application in practice of the above-mentioned legislation to ensure accountability, including the statistical data on cases of forced labour detected, legal proceedings initiated, convictions handed down and the nature of the penalties imposed on convicted persons. It also requests the Government to continue providing detailed information on the measures taken to ensure that, in practice, forced labour is no longer imposed by the military or civilian authorities, as well as the private sector, such as awareness-raising and capacity-building activities for local administrators, military personnel, other stakeholders and the general public. The Committee further requests the Government to continue to provide information on the number of complaints on forced labour received and resolved by the NCM. Furthermore, while acknowledging the efforts made by the Government in respect to the proceedings to amend article 359 of the Constitution, the Committee firmly hopes that the Government will continue to take the necessary measures to ensure that article 359 of the Constitution is amended so as to bring it into conformity with the Convention and to provide information on any progress made in this regard. It once again reiterates the firm hope that all the necessary measures will be taken, in law and in practice, without delay to achieve full compliance with the Convention so as to ensure that all use of forced or compulsory labour in Myanmar is completely eliminated.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. The Committee previously noted that according to sections 24 and 25 of the Anti Trafficking in Persons Law of 2005, persons found guilty of trafficking women, children and youth shall be punished with imprisonment from a minimum of ten years to life imprisonment and a fine, while those who are found guilty of trafficking other persons shall be punished with imprisonment from a minimum term of five years to a maximum term of ten years, and may also be liable to a fine. It also noted that a Central Body for Suppression of Trafficking in Persons (CBTIP) was established with three working groups functioning under it; an Anti-Trafficking in Persons Division was created under the CBTIP; bilateral cooperation on cross-border trafficking was concluded with Thailand and China; and a third five-year National Plan of Action (NPA) to Combat Human Trafficking for 2017–21 was adopted. The Committee requested the Government to provide information on the concrete measures taken within the framework of the third five-year NPA to combat trafficking in persons, the activities undertaken by the three working groups and the Anti-Trafficking in Persons Division under the CBTIP, as well as the actions carried out through bilateral cooperation with neighbouring countries.

The Committee notes the Government’s information in its report that in 2018 the CBTIP conducted: 67 awareness-raising talks on trafficking in persons in the various regions and states; 273 awareness-raising talks in various departments attended by over 25,000 participants; 1,081 such talks in schools which were attended by over 375,000 participants; 3,386 such talks for the public which were attended by over 411, 000 participants; and disseminated over 888,000 pamphlets on trafficking in persons. The Government also indicates that within the framework of the NPA, the National Task Force Secretary, the Police Brigadier and the Head of the Anti-Trafficking in Persons Division drafted an Annual Work Plan, 2019, for combating trafficking of persons. Following the implementation of this Work Plan, the Department of Fishery established and implemented a pilot project for preventing trafficking in persons in the fishing industry; carried out awareness-raising measures for fishing business men, private factories, and fishing boat and factory owners; and took measures to cancel the business licences of business men who committed labour exploitation in domestic fishing industries. According to the statistical information provided by the Government, from 2018 to 2019, 46 persons were arrested in 29 cases involving 67 victims of trafficking in persons for forced labour, of which 17 persons were victims of trafficking on fishing boats. Of these, 13 cases were related to trafficking of persons to Malaysia (2), Thailand (3) and to China (8). In 20 cases action was taken under the Anti-Trafficking Law. Furthermore, from 2018 to July 2019, 2,615 reports of trafficking of persons were received by the hotline telephone and in seven cases action was taken under the Anti-Trafficking Law. The Committee also notes the detailed information provided by the Government on the various activities undertaken by the Government in cooperation with other countries in its fight against trafficking in persons, in particular various training courses and workshops on strengthening the capacity and coordination on prevention and investigation of trafficking in persons for law enforcement officials conducted in India, China, Lao People’s Democratic Republic, Philippines, Thailand, Singapore, Indonesia, Malaysia and Viet Nam.

Furthermore, according to the information contained in a report on the official website of the President of Myanmar, the country observed the 7th Anti Trafficking in Persons Day in September 2019. This report indicates that the country’s human trafficking cases were found to be 75.24 per cent in forced marriages and 13.59 per cent for forced prostitution and 8.74 per cent for forced labour. By countries of destination, 79.61 per cent were related to China, 1.46 per cent to Thailand and 18.93 per cent within Myanmar. The Committee also notes from this report that since the 6th ceremony of Anti-Trafficking in Persons day in 2018, a total of 210 cases of trafficking in persons occurred, of which about 156 cases were brought to courts, and legal actions were taken against 152 men and 334 women. Money and properties related to cases were confiscated in accordance with the Money Laundering Eradication Law of 2014. The Committee further notes from a 2018 report of the International Organisation for Migration (IOM) that the Myanmar’s Ministry of Social Welfare, Relief and Resettlement, with the support of the IOM launched a manual of standard operating procedures for case management, repatriation and reintegration of victims of trafficking from Thailand. To date, Myanmar and Thailand have coordinated for the safe and dignified return of 500 victims of trafficking from Thailand to Myanmar. The Committee strongly encourages the Government to continue taking effective measures to combat trafficking in persons and to ensure the protection and reintegration of victims of trafficking. It requests the Government to continue to provide information on the concrete measures taken to combat trafficking in persons, including within the framework of the NPA 2017–21, the activities undertaken by the Anti-Trafficking in Persons Division under the CBTIP, as well as the actions carried out through bilateral cooperation with neighbouring countries. The Committee also requests the Government to continue providing information on the application of sections 24 and 25 of the Anti-Trafficking Law in practice, including the number of investigations, prosecutions and convictions, as well as the specific sanctions imposed. It further requests the Government to continue providing information on the number of victims of trafficking that have been identified and provided with appropriate protection and assistance.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019. It also notes the detailed discussion which took place at the 108th Session of the Conference Committee on the Application of Standards in June 2019, concerning the application by Myanmar of the Convention.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

Articles 1(1), 2(1) and 25 of the Convention. Elimination of all forms of forced labour. 1. Engagement of the ILO regarding the elimination of forced labour. (a) Historical background. In March 1997, a Commission of Inquiry was established under article 26 of the ILO Constitution to address the forced labour situation in Myanmar. As reported to the ILO Governing Body, forced labour had taken various forms in the country over the years, including forced labour in conflict zones, as well as for public and private undertakings. In its recommendations, the Commission of Inquiry urged the Government to take the necessary steps to ensure that: (i) the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention; (ii) in practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and (iii) the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced.

Since then, the issue has been the focus of cooperation between the Government and the ILO for more than a decade. In 2002, an Understanding was agreed between the Government and the ILO, which permitted the appointment of an ILO Liaison Officer. Later in 2007, the Supplementary Understanding (SU) was signed, in particular, to set out a complaints mechanism with the objective “to formally offer the possibility to victims of forced labour to channel their complaints through the services of the Liaison Officer to the competent authorities with a view to seeking remedies available under the relevant legislation and in accordance with the Convention”. In addition, in 2012, the ILO concluded a Memorandum of Understanding (MoU) on a Joint Strategy for the Elimination of Forced Labour by 2015, which provided a basis for seven interrelated action plans. The ILO also participated in the Country Task Force on Monitoring and Reporting on underage recruitment issues.

(b) Recent developments. The Action Plan for the elimination of all forms of forced labour, 2018 and the SU, which provided for a complaints mechanism, expired in December 2018. On 21 September 2018, the Government, the workers’ and employers’ organizations and the ILO signed the MoU on Decent Work Country Programme (DWCP) (2018–21). The significant implementation outputs, as indicated in the DWCP document, include institutionalization of national forced labour complaints mechanisms and strengthened protection against unacceptable forms of work, in particular forced and child labour by 2021. The Committee notes that in the course of the discussion in October–November 2019, the Governing Body noted, in respect of progress in the elimination of the use of forced labour that the number of complaints received had continued to decrease since 2016 suggesting progress towards elimination of underage recruitment, which generally accounted for the highest proportion of complaints received. It noted that in 2019 the ILO received 108 forced labour complaints, 48 of which have been assessed as being within the definition of forced labour while there were no complaints received of forced labour related to the involuntary use of civilians as guides and porters from conflict areas. Very few reports of forced labour in the private sector have been received since March 2019. The Governing Body also noted that the proposal for the establishment of a National Complaints Mechanism (NCM) was approved by the Government by a letter dated 7 August 2019 (GB.337/INS/9). The Governing Body noted that the ILO stressed on the following elements as necessary for a credible and effective complaints mechanism: (a) impartiality in the assessment and investigation of complaints; (b) guaranteed protection of victims; (c) credible accountability; (d) decentralization of responsibility to eliminate forced labour; and (e) awareness-raising programmes, particularly for those living in remote and conflict-affected areas. Although the Government had publicly advertised its intention to establish an NCM, no reference had been made to complainants being able to continue to submit complaints to the ILO. The GB also noted that while the Government had made efforts to develop interim procedures for dealing with complaints, a framework for the development of the NCM and an action plan for the elimination of forced labour under the DWCP, the victim protection measures remained unclear and the decentralization responsibility to state and regional governments to eliminate forced labour still needed to be addressed.

2. Application of the Convention in law and in practice. In its previous comments, the Committee noted that the Ward or Village Tract Administration Act of 2012, which repealed the Village Act and the Towns Act of 1907 makes the use of forced labour by any person a criminal offence punishable with imprisonment and fines (section 27A). It noted that no action had been taken to amend article 359 of the Constitution (Chapter VIII – Citizenship, fundamental rights and duties of citizens), which exempts from the prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public” and could be interpreted in such a way as to allow a generalized exaction of forced labour from the population. It also noted that the developments within the peace process, such as the National Ceasefire Agreement of 2015 as well as the ILO initiation with the Government and the Ethnic Armed groups which resulted in two non-state armed groups committing to end forced labour, led to a significant decrease in the numbers of reported cases of forced recruitment for military purposes by both the security forces and armed groups. The Committee, however, noted from the Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar of 17 September 2018 (A/HRC/39/CRP.2) that the use of forced labour by the Tatmadaw (the armed forces of Myanmar) persisted, particularly in Kachin and Shan States, as well as among the ethnic Rakhine and Rohingya. It noted that in many instances, the Tatmadaw arrived in a village and took villagers directly from their homes or from the areas surrounding their village while they were fishing, farming, running errands or travelling while in some cases, this was done in an organized way, such as house by house, on the basis of a quota for each family, through a list, or with the cooperation of village leaders. Persons subjected to forced labour were required to perform a variety of tasks and the duration varied from a few days to months. Many of them were required to act as porters, carrying heavy packages including food, clothes and in some cases weapons. Other common types of work included digging trenches, cleaning, cooking, collecting firewood, cutting trees, and constructing roads or buildings in military compounds. Victims were also sometimes required to fight or participate in hostilities. Often, victims were given insufficient food of poor quality or were not able to eat at all. They did not have access to water and were kept in inadequate accommodation, including in the open air without bedding and without adequate sanitary facilities. Victims were subjected to violence if they resisted, worked slowly or rested. Particularly, female victims also faced sexual violence (paragraphs 258–273, 412–424 and 614–615). The Committee noted with deep concern the persistence of forced labour imposed by the Tatmadaw in Kachin and Shan States, as well as among the ethnic Rakhine and Rohingya. It urged the Government to strengthen its efforts to ensure the elimination of forced labour in all its forms, in both law and practice, particularly the forced labour imposed by the Tatmadaw; to take the necessary measures to ensure the strict application of the provisions of the Ward or Village Tract Administration Act of 2012 and the Penal Code; as well as to provide information on any progress made regarding the amendment to article 359 of the Constitution.

The Committee notes that, in its observations, the ITUC stated that forced labour is exacted in a systematic and continuous manner and that this practice is also persistent in the private sector, especially in the agricultural sector (fisheries, sugarcane, beans) and in the jade industry. The ITUC further highlights the plight of the Rohingya population, nearly 700,000 of them, who were expelled from the Rakhine State following the so-called clearance operations, commenced in 2017, and who are at an increased risk of falling victims to forced labour by both state and non-state actors.

The Committee notes the statement made by the Government representative of Myanmar to the Conference Committee that a total of ten ethnic armed forces have already signed the National Ceasefire Agreement and a unilateral ceasefire has been announced in the States of Kachin and Shan from December 2018 to April 2019. The Government representative further indicated that interim procedures for continuously receiving complaints are in place and that a Joint Parliamentary Committee was established to amend the Constitution. The Worker members, in their statement to the Conference Committee, alleged that the Government failed to implement most of the activities designed under the 2012 and 2018 action plans. The Committee notes that the Conference Committee, in its concluding observations, while welcoming the efforts in eliminating forced labour, expressed concern over the persistent use of forced labour and therefore urged the Government to take all necessary measures to ensure that forced labour is not imposed in practice by the military or civilian authorities; to ensure that victims of forced labour have access to effective remedies and comprehensive victim support without fear of retaliation; to increase the visibility of awareness-building and capacity-building activities for the general public and administrative authorities to deter the use of forced labour; to provide detailed information on the progress made within the DWCP; and to intensify its cooperation with the ILO through the development of a time-bound action plan for the establishment of, and transition to, an effective complaints handling procedure.

The Committee notes the Government’s information in its report that within the framework of the DWCP, in January 2019, a Training of Trainers on the Elimination of Forced Labour was conducted with representatives from the High Level Working Group (HLWG), members of the Technical Working Group (TWG) and representatives of the ILO. Moreover, a knowledge-sharing workshop was held during the same period with 50 representatives, including members from the HLWG, TWG, representatives of ILO, Government, and employers’ and workers’ organizations to share good practices of other countries on developing the National Complaints Mechanism. Furthermore, an action plan for developing the NCM (2019–21) on forced labour has been drafted. The Government indicates that the interim procedures for receiving and resolving forced labour complaints are, and will be, carried out by the HLWG until the establishment of the NCM. According to the Government’s report, to date, the HLWG has received ten complaints concerning forced labour.

The Committee also notes the Government’s information that from July 2018 to August 2019, a total of 6,423 awareness-raising workshops on forced labour were conducted for an estimated 507,935 people in related townships across the country and 115,113 posters were distributed. Moreover, to prevent the use of forced labour in the private sector, from January 2018 to July 2019, 1,903 knowledge-sharing workshops were conducted with 92,698 participants from 4,252 factories, shops, establishments and training centres. Regarding the amendments to the Constitution, the Committee notes the Government’s statement that the Ministry of Labour, Immigration and Population has submitted a proposal to the Joint Parliamentary Committee, established to amend the Constitution, to consider the amendment of article 359 of the Constitution in August 2019. The Committee further notes the Government’s information that no one was punished under the Ward or Village Tract Administration Act and the Penal Code from July 2018 to July 2019. While taking note of the measures taken by the Government towards the elimination of all forms of forced labour, the Committee once again reminds the Government that, by virtue of Article 25 of the Convention, the exaction of forced or compulsory labour shall be punishable as a penal offence, and the penalties imposed by law shall be really adequate and strictly enforced. The Committee therefore strongly urges the Government to take the necessary measures to ensure the strict application of the national legislation, particularly the provisions of the Ward or Village Tract Administration Act of 2012 and the Penal Code, so that sufficiently dissuasive penalties of imprisonment are imposed and enforced against perpetrators in all cases. In this regard, the Committee requests the Government to provide information on the application in practice of the above-mentioned legislation to ensure accountability, including the statistical data on cases of forced labour detected and the specific penalties imposed on perpetrators. It also requests the Government to continue providing detailed information on the measures taken to ensure that, in practice, forced labour is no longer imposed by the military or civilian authorities, as well as the private sector, such as awareness-raising and capacity-building activities for local administrators, military personnel, other stakeholders and the general public. The Committee further urges the Government to take the necessary measures to ensure the establishment and functioning of the National Complaints Mechanism, without delay and that the procedures for amending article 359 of the Constitution will be carried out in the very near future. It requests the Government to provide information on any progress made in this regard. The Committee finally requests the Government to continue to provide information on the number of complaints on forced labour received and resolved by the HLWG interim complaints mechanism. It once again reiterates the firm hope that all the necessary measures will be taken, in law and in practice, without delay to achieve full compliance with the Convention so as to ensure that all use of forced or compulsory labour in Myanmar is completely eliminated.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. The Committee previously noted the adoption of the Anti-Trafficking in Persons Law of 2005 (Anti-Trafficking Law). According to sections 24 and 25 of this Law, persons found guilty of trafficking women, children and youth shall be punished with imprisonment from a minimum of ten years to life imprisonment and a fine, while those who are found guilty of trafficking other persons shall be punished with imprisonment for a term from a minimum of five years to a maximum of ten years, and may also be liable to a fine. The Committee also noted that, according to the Final Report Phase-III of the United Nations Inter-Agency Project on Human Trafficking of 2014 (UNIAP report), the second five-year National Plan of Action (NPA) to Combat Human Trafficking for 2012–16 was adopted. In addition, with the support from the UNIAP, a Border Cooperation on Anti-Trafficking in Persons Mechanism with Thailand and Border Liaison Offices with China have been established to support coordination in cases of cross-border trafficking. The Committee further noted that, pursuant to section 5 of the Anti-Trafficking Law, a Central Body for Suppression of Trafficking in Persons (CBTIP) was established with three working groups functioning under it, namely: (i) on prevention of trafficking in persons and protection of trafficking victims; (ii) on legal framework and prosecution measures; and (iii) on repatriation, reintegration and rehabilitation of trafficking victims. An Anti-Trafficking in Persons Division was also created in 2013 under the CBTIP.

The Committee notes the Government’s information in its report that, among all the identified cases of trafficking, internal trafficking accounts for only 15 per cent, while cross-border trafficking accounts for 85 per cent. Within the framework of Memorandum of Understanding (MoU) concluded with neighbouring countries, such as Thailand and China, the Government develops annual plans to enhance bilateral cooperation in the investigation of cross-border trafficking. In this regard, one more liaison office was established at the border with China in 2017. At the regional level, Myanmar ratified the ASEAN Convention against Trafficking in Persons, Especially Women and Children in 2017. The Committee also notes that the third NPA for the period of 2017–21 was adopted.

The Government indicates that, during the period of the second five-year NPA (2012–16), the Working Group on legal framework and prosecution measures initiated legal proceedings for 606 trafficking cases, involving 1,751 offenders. A large number of offenders were convicted and received penalties of up to life imprisonment. In addition, from January 2017 to June 2018, 331 cases of trafficking were prosecuted, involving 937 offenders. Moreover, from 2012 to 2016, the Working Group on prevention of trafficking in persons and protection of trafficking victims organized 14,334 awareness-raising activities, which reached 1,925,810 persons. A large number of anti-trafficking pamphlets were also disseminated to the public. Moreover, protection services were provided to 23,309 victims and potential victims of trafficking. During the same period, the Working Group on repatriation, reintegration and rehabilitation of trafficking victims provided necessary assistance to identified victims. 2,270 victims were repatriated to their countries of origin, including Thailand, China, Indonesia and India, while 1,814 received reintegration services with the assistance of the UNICEF. Moreover, 69 victims were provided with vocational training and health-care services, as well as support for setting up small-scale business. From January 2017 to June 2018, 611 victims were repatriated to their countries of origin, while 289 received various reintegration and rehabilitation services. The Committee requests the Government to continue providing information on the concrete measures taken within the framework of the third five-year NPA to combat trafficking in persons, the activities undertaken by the three working groups and the Anti-Trafficking in Persons Division under the CBTIP, as well as the actions carried out through bilateral cooperation with neighbouring countries. The Committee also requests the Government to continue providing information on the application of sections 24 and 25 of the Anti-Trafficking Law in practice, including the number of investigations, prosecutions, and convictions, as well as the specific sanctions imposed. It further requests the Government to continue providing information on the number of victims of trafficking that have been identified and provided with appropriate protection and assistance.

[The Government is asked to supply full particulars to the Conference at its 108th Session and to reply in full to the present comments in 2019.]

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Articles 1(1), 2(1) and 25 of the Convention. Elimination of all forms of forced labour 1. Engagement of the ILO regarding the elimination of forced labour. (a) Historical background. In March 1997, a Commission of Inquiry was established under article 26 of the ILO Constitution to address the forced labour situation in Myanmar. As reported to the ILO Governing Body, forced labour had taken various forms in the country over the years, including forced labour in conflict zones, as well as for public and private undertakings. In its recommendations, the Commission of Inquiry urged the Government to take the necessary steps to ensure that: (i) the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention; (ii) in practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and (iii) the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced.

Since then, the issue has been the focus of cooperation between the Government and the ILO for more than a decade. In 2002, an Understanding was agreed between the Government and the ILO, which permitted the appointment of an ILO Liaison Officer. Later in 2007, the Supplementary Understanding (SU) was signed to, in particular, set out a complaints mechanism with the objective “to formally offer the possibility to victims of forced labour to channel their complaints through the services of the Liaison Officer to the competent authorities with a view to seeking remedies available under the relevant legislation and in accordance with the Convention”. In addition, in 2012, the ILO concluded a Memorandum of Understanding (MoU) on a Joint Strategy for the Elimination of Forced Labour by 2015, which provided a basis for seven inter-related action plans. The ILO also participated in the Country Task Force on Monitoring and Reporting on underage recruitment issues.

(b) Recent developments. On 22 January 2018, the Government and the ILO signed another MoU, which agreed on a new Action Plan for the elimination of all forms of forced labour for the year of 2018. The Action Plan focuses on four priorities, including: (i) continued operation of the complaints mechanism; (ii) training and awareness raising on forced labour including for Government officials; (iii) capacity building to end forced labour at regional and state levels; and (iv) mobilization of tripartite partners for the prevention of forced labour in the private sector. In particular, the extension of the SU to 31 December 2018 will allow the complaints mechanism and further cooperation on forced labour to continue during the transition to the Decent Work Country Programme (DWCP), which was endorsed by the National Tripartite Dialogue Forum on 16 January 2018. During its most recent discussion on this case in March 2018, the Governing Body concluded that the extension of the SU and agreement on an updated further phase of the Action Plan for the Elimination of Forced Labour, together with the tripartite endorsement of the first DWCP for Myanmar, are very welcome and represent significant progress in pursuing ILO constituent priorities (GB.332/INS/8, paragraph 17). In September 2018, the first DWCP for Myanmar was agreed by the Union Government, the employers’ and workers’ organizations and the ILO, which is considered by all parties as a major step forward for the country, signalling a process towards normalizing its engagement with the ILO and the International Community after decades of authoritarian rule and related problems of forced labour.

2. Application of the Convention in law and in practice. In its previous comments, the Committee noted with satisfaction the adoption of the Ward or Village Tract Administration Act of 2012, which repealed the Village Act and the Towns Act of 1907 (section 37) and makes the use of forced labour by any person a criminal offence punishable with imprisonment and fines (section 27A). However, the Committee noted that no action had been taken to amend article 359 of the Constitution (Chapter VIII – Citizenship, fundamental rights and duties of citizens), which exempts from the prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public” and could be interpreted in such a way as to allow a generalized exaction of forced labour from the population. The Government stated that the 2008 Constitution would be amended as required. Regarding the practical application of the Convention, the Committee welcomed the various measures undertaken by the Government in collaboration with the ILO, aimed at the eradication of forced labour in practice. These measures included the undertaking of an extensive range of awareness-raising activities across the country, support for the continued use of the SU complaints mechanism to enable victims of forced labour to seek redress, as well as holding to account a substantial number of military personnel for their continued use of forced labour. While taking due note of the progress made towards the elimination of all forms of forced labour, the Committee observed that the use of forced labour continued in Myanmar.

The Committee notes the Government’s information in its report that, from March 2007 to June 2018, the complaints mechanism received a total number of 754 cases, of which 739 are related to underage recruitment, 13 to forced labour and 2 to other issues. 377 military personnel, including 64 officers and 313 soldiers of other ranks, were punished by military disciplinary action for underage recruitment and forced labour. Moreover, within the framework of the Action Plan for Prevention of Underage Recruitment, 448 military personnel were punished by military disciplinary action. Only one person was punished under section 374 of the Penal Code. The Committee also notes the Government indication that implementing directives for the Ward or Village Tract Administration Law of 2012 were issued for ward and village tract administrators and general administrative departments at all levels. Moreover, 18,191 awareness-raising workshops on forced labour were held, with 1,280, 307 participants from related townships of all states and regions. Training was also provided to military personnel for the prevention of underage recruitment. The Government further indicates that a special budget was allocated to the ward and village tract administration offices to prevent the use of forced or unpaid labour. Furthermore, measures were undertaken to ensure the enforcement of labour laws, particularly in the private sector. The labour law reform is also on-going with the technical assistance provided by the ILO. However, the Committee notes that the Government’s report does not contain any information on the progress made regarding the amendment to article 359 of Chapter VIII of the Constitution.

The Committee notes from the DWCP Diagnosis Report (published in September 2018) that the ILO has been working with both the Government and the Ethnic Armed Groups to secure commitment to ending forced labour, resulting in at least two non-State armed groups committing to eliminate the practice. Developments within the peace process are also likely to garner positive outcomes in terms of the elimination of forced labour, since the National Ceasefire Agreement of 2015 includes commitments to prevent forced labour of civilians and recruitment of children. The issue of forced labour was also highlighted at the first Union Peace Conference in August 2016. Consequently, there has been a significant decrease in the numbers of reported cases of forced recruitment for military purposes by both the security forces and armed groups. Similarly, forced recruitment for public works appears to be on the decline, as a result of increased awareness on the part of local authorities. However, the training of government personnel on the effective application of the law and public awareness campaigns needs to be further intensified. The Government has also indicated a desire to adopt a more decentralized approach with greater responsibility being placed with regional and state governments in the implementation of action plans and ensuring compliance with the law for the elimination of forced labour. Both the labour inspectorate and social partners also need to be capacitated to address the issue of forced labour in the private sector.

However, the Committee notes from the Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar of 17 September 2018 (A/HRC/39/CRP.2) that the use of forced labour by the Tatmadaw (the armed forces of Myanmar) persists, particularly in Kachin and Shan States, as well as among the ethnic Rakhine and Rohingya. In many instances, the Tatmadaw arrived in a village and took villagers directly from their homes or from the areas surrounding their village while they were fishing, farming, running errands or travelling. In some cases, this was done in an organized way, such as house by house, on the basis of a quota for each family, through a list, or with the cooperation of village leaders. The duration of forced labour varied from a few days to months. Persons subjected to force labour were required to perform a variety of tasks. Many of them were required to act as porters, carrying heavy packages including food, clothes and in some cases weapons. Other common types of work included digging trenches, cleaning, cooking, collecting firewood, cutting trees, and constructing roads or buildings in military compounds. Victims were also sometimes required to fight or participate in hostilities. Often, victims were given insufficient food of poor quality or were not able to eat at all. They did not have access to water and were kept in inadequate accommodation, including in the open air without bedding and without adequate sanitary facilities. Victims were subjected to violence if they resisted, worked slowly or rested. Particularly, female victims also faced sexual violence (paragraphs 258–273, 412–424 and 614–615).

The Committee takes note of the measures undertaken and the progress made by the Government regarding the elimination of forced labour. However, the Committee must note with deep concern the persistence of forced labour imposed by the Tatmadaw in Kachin and Shan States, as well as among the ethnic Rakhine and Rohingya. Moreover, the Committee observes that almost all the military personnel found involved in forced labour received only disciplinary sanctions, expect for one person who was punished under section 374 of the Penal Code. The Committee reminds the Government that, by virtue of Article 25 of the Convention, the exaction of forced or compulsory labour shall be punishable as a penal offence, and the penalties imposed by law shall be really adequate and are strictly enforced. The Committee therefore urges the Government to strengthen its efforts to ensure the elimination of forced labour in all its forms, in both law and practice, particularly the forced labour imposed by the Tatmadaw. It requests the Government to take the necessary measures to ensure the strict application of the national legislation, particularly the provisions of the Ward or Village Tract Amendment Act of 2012 and the Penal Code, so that sufficiently dissuasive penalties of imprisonment are imposed and enforced against perpetrators in all cases. In this regard, the Committee requests the Government to continue providing information on the application in practice of the abovementioned legislation to ensure accountability, including the statistical data on cases of forced labour detected and the specific penalties imposed on perpetrators. It also requests the Government to continue providing detailed information on the measures taken to ensure that, in practice, forced labour is no longer imposed by the military or civilian authorities, as well as the private sector, such as awareness-raising and capacity building activities for local administrators, military personnel, other stakeholders and the public. Finally, the Committee requests the Government to provide information on any progress made regarding the amendment to article 359 of the Constitution. The Committee reiterates the firm hope that all the necessary measures will be taken without delay to achieve full compliance with the Convention so as to ensure that all use of forced or compulsory labour in Myanmar is completely eliminated.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to supply full particulars to the Conference at its 108th Session and to reply in full to the present comments in 2019.]

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Legal framework and law enforcement. The Committee notes that the Anti-Trafficking in Persons Law of 2005 (Anti-Trafficking Law) aims to prevent and suppress trafficking in persons, with particular attention to women, children and youth. According to section 24 of this Law, persons found guilty of trafficking women, children and youth shall be punished with imprisonment from a minimum of ten years to life imprisonment and a fine. According to section 25, whoever is found guilty of trafficking in persons, other than women, children and youth shall be punished with imprisonment for a term from a minimum of five years to a maximum of ten years, and may also be liable to a fine. “Trafficking of persons”, as defined under section 3 of the Anti-Trafficking Law includes, recruiting, transporting, selling, transferring, harbouring, purchasing, lending, hiring or receiving another person for the purposes of exploitation and the term “exploitation” includes all forms of sexual exploitation, forced labour or services, and slavery, servitude or debt bondage. The Committee also notes that according to the Final Report Phase-III of the United Nations Inter-Agency Project on Human Trafficking of July 2014 (UNIAP report), the second five-year National Plan of Action (NPA) to Combat Human Trafficking 2012–16 was adopted by the Government. The Committee requests the Government to provide information on the concrete measures taken within the framework of the second five-year NPA to combat the trafficking of persons and the results achieved. The Committee also requests the Government to provide information on the application of sections 24 and 25 of the Anti-Trafficking Law, in practice, including, for example, statistics on the number and nature of offences reported, investigations, prosecutions, convictions and penal sanctions imposed with regard to the trafficking of persons.

2. Monitoring mechanisms and protection of victims. The Committee notes that the Government, in its report of August 2015 to the Human Rights Council Working Group on the Universal Periodic Review (Government’s report to the Human Rights Council), indicates that pursuant to section 5 of the Anti-Trafficking Law, a Central Body for Suppression of Trafficking in Persons (CBTIP) was established with three working groups functioning under it, namely: (i) on prevention of trafficking in persons and protection of trafficking victims; (ii) on legal framework and prosecution measures; and (iii) on repatriation, reintegration and rehabilitation of victims of trafficking (A/HRC/WG.6/23/ MMR/1, paragraph 92). The Committee also notes from the UNIAP report, that an Anti-Trafficking in Persons Division was created in 2013 under the CBTIP. In addition, with the support from the UNIAP, a Border Cooperation on Anti-Trafficking in Persons Mechanism with Thailand and Border Liaison Offices with China have been established to support coordination in cases of cross-border trafficking. The Committee requests the Government to provide information on the activities undertaken by the three working groups on trafficking in persons and the Anti-Trafficking in Persons Division, under the CBTIP, to combat the trafficking of persons, as well as information on the number of victims of trafficking that have been identified and reintegrated pursuant to such activities. It also requests the Government to provide information on the impact in combating the cross-border trafficking of persons following the establishment of the Border Cooperation on Anti-Trafficking in Persons Mechanism with Thailand and the Border Liaison Offices with China.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Follow-up to the recommendations made by the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

For a number of years, the Committee has been examining this case and it is pleased to note the various positive developments that have occurred in Myanmar since its previous examination of the case in December 2012, including with regard to the application of this Convention.

Historical background

The Committee has, over a number of years, been following up the effect given to the recommendations of the Commission of Inquiry, appointed by the Governing Body in March 1997 under article 26 of the Constitution. In its recommendations, the Commission of Inquiry urged the Government to take the necessary steps to ensure that:

• -the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention;
• -in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and
• -the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced, which required thorough investigation, prosecution and adequate punishment of those found guilty.

Appointment of an ILO Liaison Officer

In 2002, an Understanding was agreed between the Government of Myanmar and the ILO that permitted the appointment of an ILO Liaison Officer in Myanmar who was tasked with supporting the Government in the elimination of forced labour, and monitoring forced labour policy and practice within Myanmar.

The Supplementary Understanding of 26 February 2007 – Extension of the complaints mechanism

In its earlier comments, the Committee referred to the Supplementary Understanding (SU) of 26 February 2007 between the Government and the ILO, which supplemented the earlier Understanding of 19 March 2002 concerning the appointment of an ILO Liaison Officer in Myanmar. The Committee noted, in particular, that the SU set out a complaints mechanism with the object “to formally offer the possibility to victims of forced labour to channel their complaints through the services of the Liaison Officer to the competent authorities with a view to seeking remedies available under the relevant legislation and in accordance with the Convention”. The Committee noted previously that the SU was extended for the fifth time on 23 January 2012 for a further 12-month period from 26 February 2012 until 25 February 2013. Since then, and in order to ensure the legal framework for the ILO’s renewed cooperation in Myanmar, the Committee notes that the SU has been extended on an annual basis and that at its 325th Session in October–November 2015, the Governing Body decided to extend the SU for a further 12 months from January 2016 (GB.325/INS/7).

2012 Memorandum of Understanding between the Government of Myanmar and the ILO

The Committee notes that in March 2012 a Memorandum of Understanding (MoU) was reached between the Government of Myanmar and the ILO, agreeing to a structured plan of action to implement a comprehensive joint strategy with the objective of achieving the elimination of all forms of forced labour by 2015.

2013 resolution concerning the measures on the subject of Myanmar adopted by the Conference

The Committee notes a resolution on ILO action regarding Myanmar adopted by the International Labour Conference (ILC) at its 102nd Session in June 2013. This resolution followed up the conclusions of the 317th Session of the Governing Body in March 2013. The Committee notes that the 2013 resolution, while noting that more remained to be done, was encouraged with the progress made by Myanmar in compliance with Convention No. 29. Considering that maintaining the remaining measures would no longer be necessary for the implementation of the recommendations of the Commission of Inquiry, the resolution discontinued the recommendation contained in paragraph 1(a) of the resolution adopted by the Conference under article 33 of the Constitution in June 2000, which had decided that the application of Convention No. 29 by Myanmar should be discussed at a special sitting of the Committee on the Application of Standards at future sessions of the ILC. The 2013 Conference resolution also discontinued the recommendation contained in paragraph 1(b) of the June 2000 Conference resolution, which called on the Organization’s constituents to review their relations with Myanmar and take appropriate measures to ensure that these relations could not be taken advantage of to perpetuate or extend the system of forced labour referred to by the Commission of Inquiry. Under the terms of the 2013 Conference resolution, the Office and the Government were requested to continue their commitment to the application of the 2007 SU, the March 2012 MoU and associated action plans for the elimination of all forms of forced labour by 2015, in coordination with the social partners in Myanmar. The resolution also invited the Governing Body to review the situation in Myanmar on issues relating to ILO activities, including freedom of association, and the impact of foreign investment on decent working conditions in the country and, in this regard, requested the Director-General to submit a report at the March Governing Body sessions until the elimination of forced labour. The resolution further called on member States, as well as employers’ and workers’ organizations, and international organizations to support the efforts of the Government, with the assistance of the ILO, to eliminate forced labour in Myanmar and to further social justice in the country, including by making available necessary financial resources.

Ratification of the Worst Forms of Child Labour Convention, 1999 (No. 182)

The Committee welcomes the ratification by the Government of Myanmar of Convention No. 182 on 18 December 2013. The Committee notes that the Government, in collaboration with the ILO, adopted the Myanmar Programme on the Elimination of Child Labour 2014–17 (My-PEC) with the aim of developing a comprehensive, inclusive and efficient multi-stakeholder response to reduce child labour and its worst forms in Myanmar.

Discussions in the Governing Body

The Governing Body continued its discussions on this case during its 317th Session in March 2013 (GB.317/INS/4/2), during its 320th, 321st and 322nd Sessions in March, June and November 2014 (GB.320/INS/6(Rev.), GB.321/INS/INF/1, GB.322/INS/INF/2), and during its 323rd and 325th Sessions in March and November 2015 (GB.323/INS/4, GB.325/INS/7). The Committee notes that, in the course of the discussion in October–November 2015, the Governing Body noted, in respect of progress made in the implementation of the Action Plan on the Elimination of All Forms of Forced Labour by 2015, that: (i) the number of complaints received under the complaints mechanism continues to be significant. In 2015, up to the end of August, a monthly average of 24.5 complaints, assessed as being within the mandate, were received which compares to a monthly average of 33 received during 2014; (ii) the actual use of forced labour is decreasing overall, which suggests that the continued receipt of a relatively high number of complaints still reflects a continued growth in both awareness of the right to complain and confidence to lodge a complaint; (iii) with the signing of ceasefire agreements between the Government and some 13 non-state armed groups, and with the successful negotiation towards a nationwide ceasefire agreement, a significant reduction in the use of forced labour in conflict-affected areas has been seen. However, reports continue to be received of the use of forced labour in areas not as yet subject to an agreed ceasefire (predominantly in Katchin and Northern Shan States) and in areas where there is ongoing civil unrest (in particular Rakhine State); (iv) a significant number of complaints continue to be received concerning the loss of land. While some of these fall outside the mandate of the forced labour complaints mechanism, a number that are accepted as being within the mandate concern the loss of land owing to failure of the landholder to undertake forced labour; (v) an increasing number of complaints are being received alleging forced labour in the private sector. These fall into three main categories: bonded labour (both adult and child); requirement to work excessive overtime (with or without compensation) at risk of losing the job; and trafficking for forced labour (including in domestic work). There continues to be a low level of awareness regarding the concept of forced labour in the private sector, with many people understanding it as a concept applicable only in the public sector; (vi) awareness raising with all sectors of society remains a critical requirement. Although considerable work has been undertaken in cooperation with the Government, social partners and civil society, levels of awareness of rights and responsibilities in respect of the use of forced labour and knowledge of the existence of the ILO and Government complaint mechanisms remain relatively low. To rectify this, the Government has committed to the continued broadcast of radio and television awareness-raising clips, and discussions are under way, but not yet finalized, on the placement of billboards in strategic locations identified as forced labour hotspots. Three DVDs have been developed on different aspects of forced labour, which are shortly to be distributed through the ILO voluntary facilitators’ network for use in local awareness-raising/training activities. Negotiations with the Government continue on the adaptation of at least one of these DVDs into documentary format for potential television broadcast; and (vii) in respect of accountability, the report to the 323rd Session (March 2015) of the Governing Body indicated that some 274 prosecutions, resulting in punishments ranging from the issuance of formal reprimands, monetary fines, demotion, loss of service time against promotion and pension rights, dishonourable discharge or imprisonment, have been made against military personnel in response to complaints under the SU. Since then, notice has been received of the prosecution and conviction under summary trial of a further two commissioned officers and three other ranked personnel. The commissioned officers received reprimands, two of the other ranked personnel had a service reduction imposed and the third received a monetary fine. However, the ILO has still received no information concerning the criminal prosecution of any person under the forced labour provisions of the Ward or Village Tract Amendment Act 2012.

The Governing Body observed that considerable progress has been made, with recorded reductions in the actual use of forced labour since the Government took office in 2011, and particularly following the commencement of peace negotiations. Moreover, in response to the recommendations of the Commission of Inquiry, national legislation has been brought into compliance with the provisions of Convention No. 29, a public statement has been made at the highest level confirming the Government’s political commitment to achieve the elimination of all forms of forced labour, an extensive Government–ILO awareness-raising activity has been undertaken and continues, assurances have been received as to the policy of full budget provision for the undertaking of public works, and a substantial number of military personnel have been held to account for their continued use of forced labour. However, complaints continue to be received under the Government–ILO complaints mechanism, including in respect of village- and township-level public works; awareness levels and understanding of concepts remain relatively low; and there is no evidence of commitment to accountability for breach of the law, other than in the case of the military.

The Government’s report

The Committee notes the information in the Government’s report concerning the implementation of the SU complaints mechanism pursuant to which forced labour complaints are being resolved. The Government indicates that from March 2007 to 22 June 2015, 697 cases have been brought against military personnel in response to complaints under the SU. Of these cases, 628 concerned underage recruitment, 13 concerned forced labour, and two concerned other issues. The Government points out that 48 army officers and 271 other ranked officials were punished pursuant to the military rules in relation to underage recruitment and forced labour cases. Punishments ranged from the issuance of formal reprimands, monetary fines, demotion, loss of service time against promotion and pension rights, dishonourable discharge or imprisonment. The Committee further notes the information in the Government’s report concerning the implementation in practice of the Action Plan for the Elimination of All Forms of Forced Labour in Myanmar by 2015, elaborated by the Government in cooperation with the ILO. The Government states that awareness-raising activities have been intensified in conformity with the Action Plan. In this connection, a total of 13 awareness-raising workshops on the elimination of forced labour have been conducted. Moreover, a total of 40 joint Ministry of Labour–ILO awareness raising workshops were conducted across the country from July 2012 to August 2015. In addition, the General Administration Department under the Ministry of Home Affairs has issued instructions to the administrators of the regions and states to abide by the provisions of the Ward or Village Tract Administration Act, which prohibits the exaction of forced labour and makes it a criminal offence. Finally, the Government states that the Ministry of Defence and the United Nations Country Task Force on Monitoring and Reporting (CTFMR) signed, on 27 June 2012, an action plan to prevent and end the recruitment and use of children under 18 years of age in the armed forces (Tatmadaw). In this regard, the Committee notes the Government’s indication that a total of 645 minors, who were recruited by Tatmadaw, were handed over to their parents between 2012 and 2015.

The Committee’s concluding remarks

Regarding legislative developments, the Committee previously noted with satisfaction the adoption by Parliament of the Ward or Village Tract Administration Act of 24 February 2012 (as amended on 28 March 2012), which repealed the Village Act and the Towns Act of 1907 (section 37) and which makes the use of forced labour by any person a criminal offence punishable with imprisonment and fines (section 27A). However, the Committee notes that no action has been taken to amend article 359 of the Constitution (Chapter VIII – Citizenship, fundamental rights and duties of citizens), which exempts from a prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public”. In its earlier comments, the Committee observed that this exception permits forms of forced labour that exceed the scope of the specifically defined exceptions in Article 2(2) of the Convention and could be interpreted in such a way as to allow a generalized exaction of forced labour from the population. The Committee notes the Government’s statement in its report that the 2008 Constitution, which has been ratified and promulgated through a national referendum with the approval of the people of Myanmar, will be amended as required. The Committee once again expresses the firm hope that the necessary measures will at last be taken with a view to amending article 359 of Chapter VIII of the Constitution in order to bring it into conformity with the Convention.

Regarding the practical application of the Convention, the Committee welcomes the various measures undertaken by the Government, in collaboration with the ILO, aimed at the eradication of forced labour for men, women and children in practice. These measures include the undertaking of an extensive range of awareness-raising activities across the country, support for the continued use of the SU complaints mechanism to enable victims of forced labour to seek redress, as well as holding to account a substantial number of military personnel for their continued use of forced labour. While taking due note of the progress made towards the elimination of all forms of forced labour, the Committee observes that the use of forced labour continues in Myanmar. The Committee therefore fully endorses the conclusions concerning Myanmar made by the Governing Body and encourages the Government to pursue with vigour its ongoing efforts towards the elimination of forced labour in all its forms, in both law and practice, by fully implementing the recommendations of the Commission of Inquiry. It requests the Government to provide, in its next report, detailed information on the measures taken to that end and, in particular, on the measures taken to ensure that, in practice, forced labour is no longer imposed by the military or civil authorities, as well as the private sector. It also requests the Government to provide information on the measures taken to ensure the strict application of the national legislation, particularly the provisions of the Ward or Village Tract Amendment Act 2012, so that penalties for the exaction of forced labour under this law and the Penal Code are strictly enforced against perpetrators. The Committee also asks the Government to continue to provide information on: various practical measures aimed at the eradication of all forms of forced labour, such as the continuation and strengthening of awareness-raising activities; improvements in dealing with under-age recruitment by the military, including the release and reintegration of children, and the imposition of disciplinary and penal sanctions on military personnel; cooperation in the continued functioning of the SU complaints mechanism; and measures to budget adequate means for the replacement of forced or unpaid labour. The Committee reiterates the firm hope that all the necessary measures will be taken without delay to achieve full compliance with the Convention so as to ensure that all use of forced or compulsory labour in Myanmar is completely eliminated.

The Committee is raising other matters in a request addressed directly to the Government.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Follow-up to the recommendations made by the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

For a number of years, the Committee has been examining this case and it is pleased to note the various positive developments that have occurred in Myanmar over the past year, including with regard to the application of this Convention.

Historical background

The Committee has, over a number of years, been following up on the effect given to the recommendations of the Commission of Inquiry, appointed by the Governing Body in March 1997 under article 26 of the Constitution. In its recommendations, the Commission of Inquiry urged the Government to take the necessary steps to ensure that:

• -the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention;
• -in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and
• -the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced, which required thorough investigation, prosecution and adequate punishment of those found guilty.

The Commission of Inquiry also emphasized the need for concrete action to be taken immediately in order to bring an end to the exaction of forced labour in practice, to be accomplished through public Acts of the Executive promulgated and made known to all levels of the military and to the whole population. The Committee of Experts identified four areas in which such “concrete action” should be taken by the Government to fulfil the recommendations of the Commission of Inquiry. In particular, the Committee indicated the following measures:

• -issuing specific and concrete instructions to the civilian and military authorities;
• -ensuring that the prohibition of forced labour is given wide publicity;
• -providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and
• -ensuring the enforcement of the prohibition of forced labour.

Developments since the Committee’s previous observation

There have been a number of discussions and conclusions by ILO bodies, as well as further documentation received by the ILO, which has been considered by the Committee. In particular, the Committee notes the following information:

• -The report of the ILO Liaison Officer submitted to the Conference Committee on the Application of Standards during the 101st Session of the International Labour Conference (ILC) in May–June 2012, as well as the discussions and conclusions of that Committee (ILC, 101st Session, Provisional Record No. 19, Part Three (A) and document D.5(C)).
• -The documents submitted to the Governing Body at its 313th and 316th Sessions (March and November 2012), as well as the discussions and conclusions of the Governing Body during those sessions, including the decision concerning the implementation of the Joint Strategy for the Elimination of Forced Labour in Myanmar.
• -The report of the mission of the Officers of the Governing Body submitted to the ILC at its 101st Session in May–June 2012 (ILC, 101st Session, Provisional Record Nos 2-2 and 2-2(Add.)).
• -Resolution concerning the measures on the subject of Myanmar adopted under article 33 of the ILO Constitution (ILC, 101st Session, Provisional Record No. 2-4).
• -The communication made by the International Trade Union Confederation (ITUC) received in August 2012, with appendices.
• -The reports and communications of the Government of Myanmar received on 14 and 23 March, 5 and 18 April, 4 May, 25 July, 31 August and 17 October 2012.

The Committee welcomes the positive developments in the application of the Convention by the Government referred to above, and, in particular, the amendment of the legislation, the adoption of the Action Plan for the elimination of all forms of forced labour in Myanmar by 2015, and various measures undertaken by the Government, in collaboration with the ILO, aimed at the eradication of forced labour in practice.

The Supplementary Understanding of 26 February 2007 – Extension of the complaints mechanism

In its earlier comments, the Committee has referred to the Supplementary Understanding (SU) of 26 February 2007 between the Government and the ILO, which supplemented the earlier Understanding of 19 March 2002 concerning the appointment of an ILO Liaison Officer in Myanmar. The Committee has noted, in particular, that the SU has set out a complaints mechanism with the object “to formally offer the possibility to victims of forced labour to channel their complaints through the services of the Liaison Officer to the competent authorities with a view to seeking remedies available under the relevant legislation and in accordance with the Convention”. The Committee notes that the SU was extended for the fifth time on 23 January 2012, for a further 12-month period from 26 February 2012 until 25 February 2013 (ILC, 101st Session, Provisional Record No. 19, Part Three, document D.5(G)).

Discussion and conclusions of the Conference Committee on the Application of Standards

The Committee on the Application of Standards once again discussed this case in a special sitting during the 101st Session of the Conference in June 2012. The Conference Committee welcomed the progress achieved towards complying with the 1998 recommendations of the Commission of Inquiry. It observed that many important steps had been taken by the Government in this regard and noted, in particular, the following: (i) the orders issued by the Commander-in-Chief of the Defence Services in March 2012 advising all military personnel that strict and stern military disciplinary actions shall be taken against perpetrators of military under-age recruitment, and those of April 2012 which make the new law prohibiting forced labour applicable to the military with perpetrators being prosecuted under section 374 of the Penal Code; (ii) budget allocations made for the payment of wages for public works at all levels for 2012–13; (iii) the progress made on the translation into local languages of the brochure on the complaints mechanism; (iv) the statement made by the President on May Day 2012 committing the Government to acceleration of action to ensure the eradication of all forms of forced labour; and (v) disciplinary measures taken against 166 military personnel and action taken under section 374 of the Penal Code against 170 other government officials and five military personnel. The Conference Committee also welcomed the elaboration of a draft Action Plan, developed between the Government and the ILO, to implement the comprehensive, proactive joint strategy for the elimination of all forms of forced labour in Myanmar, which was the subject of a Memorandum of Understanding on the elimination of forced labour in Myanmar signed on 16 March 2012. Welcoming the elaborate and detailed Action Plan, the Conference Committee insisted that all the social partners and civil society organizations should play an active role in prioritizing the elements in the Plan most relevant to the immediate implementation of the Commission of Inquiry’s recommendations.

However, the Conference Committee reiterated its concern over the provision of the Constitution which provides for an exception to the prohibition of forced labour for “duties assigned by the Union in accordance with the law in the interest of the public”. It trusted that steps would be taken to ensure that any exception to forced labour provided for in the constitutional and legislative framework is strictly limited to the narrow scope of exceptions established by Convention No. 29.

The Conference Committee welcomed the Government representative’s statement that a culture of impunity would not be tolerated. The Committee trusted that the newly adopted legislation would be effectively applied with effective and dissuasive sanctions imposed to punish the use of forced labour in all sectors, and requested the Government to review the impact of the measures that it had reported on so as to be in a position to strengthen them where necessary. It firmly emphasized the importance of the rule of law and the independence of the judiciary as necessary preconditions for real democratization and change. The Conference Committee encouraged the Government and the ILO to monitor closely the progress made in the implementation of the Action Plan, especially as regards the use of forced labour by the military, and requested that information be provided in this regard to the ILO this year.

The Conference Committee also welcomed the release of numerous political and labour activist detainees and expected that all further such prisoners would be immediately released. It trusted that complainants and facilitators would continue to be protected in relation to their use of the complaints mechanism, the retention of which the Conference Committee considered to be critically important. It once again called on all investors to ensure that their activity in Myanmar was not used to perpetuate the use of forced labour but rather made a contribution to its complete eradication, in full respect for international labour standards. Finally, the Conference Committee called for the strengthening of the capacity of the ILO Liaison Office to assist the Government, the social partners and all other relevant stakeholders to play a full and constructive role in the efforts made to eliminate forced labour.

Resolution concerning the measures on the subject of Myanmar adopted by the Conference

The Committee notes a resolution on ILO action regarding Myanmar adopted by the ILC at its 101st Session in June 2012. This resolution followed up on the conclusions of the 313th Session of the Governing Body in March 2012, the Report and the recommendations of the mission to Myanmar undertaken by the Governing Body Officers in May 2012, and the conclusions of the Committee on the Application of Standards at its special sitting on the application of the Convention by Myanmar.

The Committee notes that the mission concluded in its report that there is sufficient political will and technical need in Myanmar to justify a substantially increased and diversified engagement by the ILO. As to whether sufficient progress has been made in implementing the recommendations of the Commission of Inquiry to justify a modification or withdrawal of the measures decided by the Conference in 1999 and 2000, the mission concluded that the legislative changes introduced by the new Government, and increasingly taking effect in recent months, appear to respond appropriately to the Commission of Inquiry’s first recommendation on amending the legislation. The mission also concluded that, notwithstanding the progress made in creating an appropriate legal framework, the greatest outstanding challenge in the implementation of the recommendations of the Commission of Inquiry is the total elimination of the actual practice of forced labour in Myanmar. The mission emphasized that existing practices, which have been accepted for decades, will require a major and sustained effort of awareness raising. As long as the practice of the use of forced labour persists, those responsible for it must be investigated, prosecuted and punished. An independent and impartial judiciary trained on issues of forced labour will help put an end to the climate of impunity. The mission also recalled that the finalization and determined implementation of the comprehensive strategy for the total elimination of all forms of forced labour by 2015 are of critical importance in the definitive fulfilment of the recommendation of the Commission of Inquiry.

The Committee notes that the 2012 resolution effectively removed the restrictions on ILO cooperation with the Government of Myanmar that had been set by the Conference resolution of June 1999. It also suspended for 12 months the recommendation contained in paragraph 1(b) of the resolution adopted by the Conference under article 33 of the Constitution in June 2000. Under the terms of this resolution, the Conference decided, in particular, to lift the limitation imposed on ILO technical cooperation or assistance to the Government of Myanmar, enunciated in the 1999 resolution, to enable the ILO to assist the Government, employers and workers of Myanmar on a variety of issues coming within the ILO’s mandate; allow the Government of Myanmar once again to participate in ILO meetings, symposia and seminars in the same way as any other Member, with social partners from Myanmar receiving the same treatment; and suspend for one year the recommendation contained in paragraph 1(b) of the 2000 resolution, which called on the Organization’s constituents to review their relations with Myanmar and take appropriate measures to ensure that these relations could not be taken advantage of to perpetuate or extend the system of forced labour referred to by the Commission of Inquiry. The resolution also requested the Government of Myanmar to facilitate the enlarged scope of the activities of the International Labour Office in Myanmar through appropriate arrangements.

Discussions in the Governing Body

The Governing Body continued its discussions on this case during its 313th and 316th Sessions in March and November 2012 (GB.313/INS/6, GB.316/INS/5/5). The Committee notes that, following the discussion in March 2012, the Governing Body welcomed the following developments in Myanmar since November 2011: adoption of the Ward or Village Tract Administration Act in February 2012, which contains a provision punishing the exaction of forced labour as a penal offence; repeal of the Village Act and the Towns Act of 1907, and prosecution of some offenders; declaration of intent by the Government to develop a joint strategy with the ILO for the full elimination of all forms of forced labour by 2015; further awareness-raising activities for the civilian and military authorities; and the further release of labour activists from detention. While welcoming these important developments which represent major steps towards meeting the recommendations of the Commission of Inquiry, the Governing Body observed that the strict application of the new law and the prosecution and punishment of offenders are critical to achieving this objective. Such measures should therefore be built into the proposed strategy, which should be accompanied by a high-level public commitment to its implementation and be applied throughout the entire territory of Myanmar, including the border areas, in the context of achieving sustainable peace agreements.

The Committee also notes that, in the course of the discussion in November 2012, the Governing Body noted that the Government, which took office in March 2011, continued to carry out a complex political, economic and social reform and transition to democracy following decades of military rule. The Governing Body welcomed, inter alia, the following developments in Myanmar since March 2012: (i) several meetings of the newly expanded Committee for the elimination of forced labour chaired by the Minister of Labour, with the Deputy Minister of Labour, the Deputy Minister of Defence and the ILO Liaison Officer as co-secretaries; (ii) the establishment of a technical Committee of the Working Group to ensure that the commitments of the Action Plan for the elimination of forced labour are addressed in a timely manner with appropriate coordination and inter-ministry cooperation; (iii) the beginning of the work on the implementation of both the ILO Action Plan on under-age military recruitment and the Joint Action Plan on children in armed conflict under Security Council Resolution 1612, of 27 June 2012; (iv) the release of 46 under-age recruits during the current year, which brings the total of under-age recruits released/discharged from the military under the ILO complaints mechanism to date to 261; (v) preparation of a forced labour brochure in seven languages, which was distributed since June 2012 through the military, the General Administration Department, the Ministry of Labour, and the Ministry of Information and at various seminars and workshops, reproduced in full in Myanmar-language newspapers and journals and broadcast over national radio and television; and (vi) further awareness-raising activities for the civilian and military authorities.

The Governing Body observed that there is a significant degree of commitment by all parties to the implementation of the Action Plan for the elimination of forced labour. However, this was only the beginning of a process to develop the foundations for ongoing concerted work to realize the stated objective. Although there were continuing indications that the practice of using forced labour is being reduced, complaints continue to be received under the mechanism set up by the 2007 SU. Thus, between 1 June and 11 October 2012, 158 complaints have been received under the complaints mechanism, including individual cases of under-age recruitment, forced labour complaints with multiple complainants and human trafficking allegations.

Communication received from the International Trade Union Confederation (ITUC)

The Committee notes that, in its comments, the ITUC welcomes the repeal of the Village Act and the Towns Act and the adoption of the new legislation which contains a provision punishing the exaction of forced labour as a penal offence, in accordance with the Convention. It also welcomes the apparent decline in the exaction of forced labour in practice and the adoption by the Government and the ILO of a joint strategy for the full elimination of all forms of forced labour by 2015. The ITUC expects that all social partners and the civil society organizations will play an active role in prioritizing and assisting in the accelerated application of the elements of the Plan that are most relevant to the immediate implementation of the Commission of Inquiry recommendations.

However, in spite of these positive developments, the ITUC refers to several recent reports which contain allegations about the continued use of forced or compulsory labour in practice in certain regions of the country, in particular by the military. This includes, for example, portering, road construction and repair, military camp construction, fence building and road clearing. Moreover, the ITUC alleges that penal sanctions for the exaction of forced or compulsory labour have not been strictly enforced against the military and civilians. Appended to the ITUC’s communication are three reports which contain allegations relating to forced labour practices by civil and military authorities in Karen, Chin and North Arakan States. The reports contain documented evidence of the incidents of forced labour which involved orders issued by military and civilian officials; information on the results of the surveys based on replies to questionnaires given by heads of household; and a number of field interviews. However, a report concerning Chin State, which focuses on the incidents of forced labour that occurred in 2011, recognizes that the lack of documentation of forced labour exacted by the military in 2012 may be seen as an early indication of efforts on the part of the military to eradicate the practice of portering and other forms of forced labour. A report concerning North Arakan State notes the persistence of forced labour practices in the north, though they noticeably decreased in the central and southern regions of the state. The ITUC concludes that, while some progress is being made, reports covering the three states referred to above provide evidence that forced labour, including forced child labour, remains a serious problem in some areas of the country.

The Government’s reports

The Committee notes the Government’s reports referred to above, which include replies to the Committee’s previous observation, as well as the Government’s response to the above comments by the ITUC and to the earlier comments received from workers’ organizations. It notes, in particular, the Government’s indications concerning the implementation in practice of the Action Plan for the elimination of all forms of forced labour in Myanmar by 2015, elaborated by the Government in cooperation with the ILO. The Government states that the Action Plan has strengthened the activities for the implementation of the SU complaints mechanism and that awareness-raising activities have been intensified in conformity with the Plan. Thus, a series of joint Ministry of Labour/ILO awareness-raising seminars and presentations have been held for villagers, representatives of military and civilian government authorities, police officers, judges, NGOs and representatives of community-based organizations. Military orders have been issued instructing that civilians are not to be used for any military support activity, including portering, sentry/guard duty and camp construction/maintenance in conflict zones. Further orders have been issued instructing that any such civilian support to military operations in non-conflict zones should be freely entered into and provided in the framework of paid employment or service contracts. Orders have also been issued by the Commander-in-Chief of the defence services to all military personnel advising that strict disciplinary actions shall be taken against perpetrators of military under-age recruitment. As regards budget allocations made for the payment of wages for public works at all levels, the Government indicates that officials from the Ministry of Labour and the ILO Liaison Officer had a meeting with officials from the budget department of the Ministry of Finance and Revenue and discussed the national budget allocation procedure; the expenses for labour have been identified, which permits the Ministries concerned to submit their proposals.

The Committee notes that, in his message to the first May Day celebration with tripartite representation, the President committed his Government publicly to the full elimination of all forms of forced labour and to the successful implementation of freedom of association. His statement was widely distributed through all media outlets.

The Committee’s concluding remarks

As regards the amendment of the legislation, the Committee notes with satisfaction the adoption by Parliament of the Ward or Village Tract Administration Law, of 24 February 2012 (as amended on 28 March 2012), which has repealed the Village Act and the Towns Act of 1907 (section 37) and makes the use of forced labour by any person a criminal offence punishable with imprisonment and fines (section 27A).

However, the Committee notes that no action has been taken or contemplated to amend section 359 of the Constitution (Chapter VIII – Citizenship, Fundamental Rights and Duties of Citizens), which exempts from a prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public”. In its earlier comments, the Committee observed that the exception encompasses permissible forms of forced labour that exceed the scope of the specifically defined exceptions in Article 2(2) of the Convention and could be interpreted in such a way as to allow a generalized exaction of forced labour from the population. The Committee notes the Government’s statement in its reports that the 2008 Constitution has been approved by the people of Myanmar and that no request to amend it has yet been received by Parliament. However, the Committee expresses the firm hope that, following the legislative amendment referred to above, the necessary measures will at last be taken with a view to amending section 359 of Chapter VIII of the Constitution, in order to bring it into conformity with the Convention.

The Committee welcomes the positive developments in the application of the Convention by the Government referred to above and, in particular, the amendment of the legislation, the adoption of the Action Plan for the elimination of all forms of forced labour in Myanmar by 2015, and various measures undertaken by the Government, in collaboration with the ILO, aimed at the eradication of forced labour for men, women and children in practice. The Committee fully endorses the conclusions concerning Myanmar made by the Conference Committee and the Governing Body and encourages the Government to pursue with vigour its ongoing efforts towards the elimination of forced labour in all its forms, both in law and in practice, by fully implementing the recommendations of the Commission of Inquiry. It requests the Government to provide, in its next report, full information on the measures taken to that effect and, in particular, on the urgent measures taken to ensure that, in practice, forced labour is no longer imposed by the authorities, in particular by the military, as well as on the measures taken to ensure the strict application of the new legislation, so that penalties for the exaction of forced labour under this legislation and the Penal Code are strictly enforced against perpetrators. The Committee also asks the Government to continue to provide information on various practical measures aimed at the eradication of all forms of forced labour, such as the expansion of awareness-raising activities; improvements in dealing with under-age recruitment by the military, including the release of children and imposition of disciplinary and penal sanctions on military personnel; cooperation in the functioning of the SU complaints mechanism; and measures taken to budget adequate means for the replacement of forced or unpaid labour. The Committee reiterates the firm hope that all the necessary measures will be taken without delay to achieve full compliance with the Convention, so as to ensure that all use of forced or compulsory labour in Myanmar is completely eliminated.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Follow-up to the recommendations made by the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

Historical background

In its earlier comments, the Committee has discussed in detail the history of this extremely serious case, which has involved the Government’s gross, long-standing and persistent non-observance of the Convention, as well as the failure by the Government to implement the recommendations of the Commission of Inquiry, appointed by the Governing Body in March 1997 under article 26 of the Constitution.

The Committee recalls that the Commission of Inquiry concluded that the obligation under the Convention to suppress the use of forced or compulsory labour was violated in national law and in practice in a widespread and systematic manner. In its recommendations, the Commission urged the Government to take the necessary steps to ensure:

• -that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention;
• -that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and
• -that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced, which required thorough investigation, prosecution and adequate punishment of those found guilty.

The Commission of Inquiry emphasized that, besides amending the legislation, concrete action needed to be taken immediately to bring an end to the exaction of forced labour in practice, to be accomplished through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. The Committee of Experts has identified four areas in which “concrete action” should be taken by the Government to fulfil the recommendations of the Commission of Inquiry. In particular, the Committee indicated the following measures:

• -issuing specific and concrete instructions to the civilian and military authorities;
• -ensuring that the prohibition of forced labour is given wide publicity;
• -providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and
• -ensuring the enforcement of the prohibition of forced labour.

Developments since the Committee’s previous observation

There have been a number of discussions and conclusions by ILO bodies, as well as further documentation received by the ILO, which has been considered by the Committee. In particular, the Committee notes the following information:

• -The report of the ILO Liaison Officer submitted to the Conference Committee on the Application of Standards during the 100th Session of the International Labour Conference in June 2011, as well as the discussions and conclusions of that Committee (ILC, 100th Session, Provisional Record No. 18, Part Three (A) and Doc. D.5(C)).
• -The documents submitted to the Governing Body at its 310th and 312th Sessions (March and November 2011), as well as the discussions and conclusions of the Governing Body during those sessions.
• -The communication made by the International Trade Union Confederation (ITUC) received in August 2011, with appendices.
• -The communication made by the Federation of Trade Unions Kawthoolei (FTUK) received in October 2011, with appendices.
• -The reports of the Government of Myanmar received on 9 December 2010, 16 February, 4 April, 2 and 27 June, 31 August, 27 September, 14 October and 18 November of 2011.

The Supplementary Understanding of 26 February 2007 – extension of the complaints mechanism

In its earlier comments, the Committee discussed the significance of the Supplementary Understanding (SU) of 26 February 2007 between the Government and the ILO, which supplemented the earlier Understanding of 19 March 2002 concerning the appointment of an ILO Liaison Officer in Myanmar. The Committee noted, in particular, that the SU set out a complaints mechanism, which had as its object “to formally offer the possibility to victims of forced labour to channel their complaints through the services of the Liaison Officer to the competent authorities with a view to seeking remedies available under the relevant legislation and in accordance with the Convention”. The Committee notes that the Supplementary Understanding was extended for the fourth time, on 23 February 2011, for a further 12-month period from 26 February 2011 until 25 February 2012 (ILC, 100th Session, Provisional Record No. 18, Part Three, Doc. D.5.F). The Committee further discusses the information on the functioning of the SU below, in the context of its comments on the other documentation, discussions and conclusions regarding this case.

Discussion and conclusions of the Conference Committee on the Application of Standards

The Committee on the Application of Standards once again discussed this case in a special sitting during the 100th Session of the Conference in June 2011. The Conference Committee took note of certain steps taken by the Government, such as: the further extension of the SU for another year; certain awareness raising activities, including in ethnic minority regions; allocation of funds for the purpose of alleviating the chances of unpaid labour on the part of the Government; and certain improvements in dealing with under-age recruitment by the military, including release of children and disciplinary action taken against military personnel, as well as dismissal of some officers and the imposition of penal sentences in certain cases. However, the Conference Committee regretted to note that there had been no substantive progress achieved towards complying with the recommendations of the Commission of Inquiry and strongly urged the Government to fully implement, without delay, these recommendations, as well as the comments and observations of the Committee of Experts, and in particular, to submit the draft proposals for amendment of the relevant legislative texts to the ILO for comment and advice aimed at ensuring their full conformity with the Convention, and ensure their early adoption into law and application in practice; to take all necessary measures to prevent, suppress and punish the full range of forced labour practices, including the recruitment of children into the armed forces, forced conscription into fire brigade and militia reservist units, portering, construction, maintenance and servicing of military camps, agricultural work and human trafficking for forced labour, that are still persistent and widespread; to strictly ensure that perpetrators of forced labour, whether civil or military, are prosecuted under the Penal Code and that sufficiently dissuasive sanctions are applied; to release immediately complainants and other persons associated with the use of the complaints mechanism who are currently detained, etc. The Conference Committee also called for the strengthening of the capacity available to the ILO Liaison Officer to assist the Government in addressing all of the recommendations of the Commission of Inquiry, and to ensure the effectiveness of the operation of the complaints mechanism.

Discussions in the Governing Body

The Governing Body continued its discussions of this case during its 310th and 312th Sessions in March and November 2011 (GB.310/5, GB.312/INS/6). The Committee notes that, following the discussion in November 2011, the Governing Body welcomed the positive developments in Myanmar since March 2011 but remained concerned that serious problems in the use of forced labour persisted. It called for the continuation of strengthened resolute and proactive action for the full implementation of the recommendations of the 1998 Commission of Inquiry. The Governing Body noted that legislation prohibiting the use of forced labour in all its forms and repealing both the Village Act and the Towns Act of 1907 is before Parliament; it urged the early adoption and coming into force of that legislation. The Governing Body urged that the practice of the imposition of forced labour on prisoners, particularly as porters in conflict areas, cease immediately and again invited the Government to avail itself of the technical assistance of the ILO in the review of the Jail Manual. The Governing Body welcomed the commencement of direct discussion with the Tatmadaw (armed forces) and looked forward to further substantive policy and behavioural change for the elimination of forced labour and ending impunity. It also welcomed the commencement of direct discussion with the Ministries of Finance and Planning and looked forward to confirmation that planning and financial management processes sufficiently provide for the payment of wages in government operational and project activities. While welcoming the release of a number of labour activists, the Governing Body strongly urged the early release of other labour activists remaining in detention. The Governing Body stressed again the critical importance of a comprehensive proactive approach encompassing not only the continuation of awareness-raising activities and the management of the complaints mechanism but also the effective prosecution of forced labour perpetrators, military and civilian, under the Penal Code. While welcoming the expanded awareness-raising activities being undertaken, including the production and distribution of the information brochure in Shan language, the Governing Body encouraged the continuation of this partnership activity and its expansion into other languages. Whilst recalling all of its previous conclusions and recommendations, the Governing Body encouraged the ILO and the Government in their continuing positive collaboration within the framework of the Understanding and its Supplementary Understanding, which should be further extended in February 2012. Finally, in the light of the above, the Governing Body considered it essential to strengthen the capacity of the Liaison Office and reiterated its repeated calls on the Government to issue without delay the visas necessary to that effect.

Communication received from workers’ organizations

The Committee notes the comments made by the ITUC in its communication received in August 2011. In these comments, the ITUC refers to several recent reports which contain detailed allegations about the continued use of forced labour, largely for portering, but also for road construction, collection and provision of bamboo and leaves to military camps, etc., which have occurred in the Karen, Shan and Arakan States. Appended to this communication was a report which contained allegations about the forced labour practices by civil and military authorities in North Arakan State/North Rakhine State over the nine months period which followed the national elections in November 2010. The report noted the observers’ estimate that 35–40 per cent of forced labourers were children, some as young as ten years old. The report attributed the increase in forced labour to construction and repair of the border fence between Myanmar and Bangladesh, but noted that forced labour was also used for large scale road construction projects, construction of bridges, portering, military camp maintenance, patrol duties, collection of logs and bamboo poles and plantation work. The Committee also notes the comments made by the FTUK in its communication received in October 2011, which contained a report including translated copies of 207 Order documents issued by military and civilian officials to village heads in eastern Myanmar between March 2008 and July 2011. The tasks and services demanded according to these documents involved, inter alia, portering for the military; bridge construction and repair; production and delivery of thatch, bamboo and other materials; attendance at meetings; provision of money and food; forced recruitment into armed ceasefire groups; provision of information on individuals, households and non-state armed groups; etc. The report states that, in almost all cases, demands were uncompensated and backed by implicit or explicit threats of violence or other punishments for non-compliance. Copies of the above communications by the ITUC and the FTUK with annexes were transmitted to the Government, in September and October 2011 respectively, for its comments.

The Government’s reports

The Committee notes the Government’s reports referred to above, which include replies to the Committee’s previous observation. It notes, in particular, the Government’s indications concerning its continued cooperation with the various functions of the ILO Liaison Officer, including monitoring and investigating the forced labour situation, discussion on the follow-up to the 100th Session of the International Labour Conference and the operation of the SU complaints mechanism. As regards the amendment of the legislation, the Government indicates that draft legislation prohibiting the use of forced labour in all its forms and repealing both the Village Act and the Towns Act of 1907 has been submitted to Parliament. However, no action has been taken or contemplated to amend section 359 of the Constitution. The Committee notes the Government’s ongoing efforts in the field of the awareness-raising and training activities on forced labour, including the joint ILO–Ministry of Labour (MOL) Awareness Raising Workshop held in Chin State in May 2011 and the distribution of booklets on the SU and informative simply worded brochures on forced labour. The Committee also notes the Government’s indications concerning measures taken to prevent recruitment of under-aged children and to release newly recruited under-aged soldiers, disciplinary action taken against military personnel, as well as dismissal of some officers and the imposition of penal sentences in certain cases. However, the Committee notes that the Government has not yet supplied its comments on the numerous specific allegations contained in the communications from the ITUC of August 2011 and the FTUK of October 2011 referred to above, as well as in the previous communication by the ITUC received in August 2010. The Committee urges the Government to respond in detail in its next report to the numerous specific allegations of continued imposition of forced or compulsory labour by military and civil authorities, which are documented in the above communications from the ITUC and FTUK, making particular reference to the “Order documents”, which provide evidence of the systematic imposition of forced labour throughout the country.

Assessment of the situation

Assessment of the information available on the situation of forced labour in Myanmar in 2011 and in relation to the implementation of the recommendations of the Commission of Inquiry and compliance with the Convention by the Government will be discussed in three parts, dealing with: (i) amendment of legislation; (ii) measures to stop the exaction of forced or compulsory labour in practice; and (iii) enforcement of penalties prescribed under the Penal Code and other relevant provisions of law.

(i) Amendment of legislation

The Committee notes from the discussions in the Governing Body in November 2011, as well as from the Government’s reports referred to above, that draft legislation prohibiting the use of forced labour in all its forms and repealing both the Village Act and the Towns Act of 1907 has been submitted to Parliament. While noting these positive developments, the Committee trusts that legislation prohibiting the use of forced labour in all its forms and repealing the Village Act and the Towns Act of 1907 will be adopted without delay in order to ensure compliance with the Convention, and that the Government will communicate to the ILO a copy of the new legislation, as soon as it is adopted.

In its earlier comments, the Committee referred to section 359 of the Constitution (Chapter VIII – Citizenship, Fundamental Rights and Duties of Citizens), which excepts from a prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public”. The Committee observed that the exception encompasses permissible forms of forced labour that exceed the scope of the specifically defined exceptions in Article 2(2) of the Convention and could be interpreted in such a way as to allow a generalized exaction of forced labour from the population. The Committee notes with regret the Government’s repeated statement in its reports that it is impossible to amend the 2008 Constitution, since it has been approved by 92.48 per cent of citizens’ votes. The Committee expresses the firm hope that, following the legislative amendment referred to above, the necessary measures will be taken with a view to amending section 359 of Chapter VIII of the Constitution, in order to bring it into conformity with the Convention.

(ii) Measures to stop the exaction of forced or compulsory labour in practice

Information available on current practice.

The Committee notes that the communications received from the ITUC and the FTUK referred to above contain well-documented allegations that forced and compulsory labour continued to be exacted from local villagers in 2010–11 by military and civil authorities in some of the country’s States. The information in the appendices refers to specific dates, locations and circumstances of the occurrences, as well as to specific civil bodies, military units and individual officials responsible for them. According to these reports, forced labour has been exacted both by military and civil authorities; it has taken a wide variety of forms and involved a variety of tasks.

The Committee notes from the report of the ILO Liaison Officer to the Conference Committee in June 2011 (Doc. D.5.C) that, notwithstanding the awareness raising and training activities, complaints alleging the use of forced labour by both military and civilian authorities continue to be received (paragraphs12–14). A considerable number of forced labour complaints have been lodged by farmers in Magway Region; they refer to the actions of the military in support of their commercial projects and self-sufficiency policy (paragraph 19). The ILO Liaison Officer also states that the generally positive responses from the Adjutant-General’s Office in respect of under-age military recruitment and associated complaints is in contrast to the continuing difficulty in reaching satisfactory conclusions regarding complaints that allege the use of forced labour by the military. The ILO Liaison Officer further states that “non-verifiable evidence continues to suggest that the use of forced labour by the civilian authorities has been reduced, at least in some parts of the country” and suggests to verify this trend in a proposed labour force survey (paragraph 15). An increasing number of complaints under the SU mechanism continue to be received, which may be also seen as a sign of greater awareness among the public of their right under the law to complain and their increased confidence in seeking redress through the use of the complaints mechanism (paragraph 10). However, according to the Governing Body document submitted to its 312th Session in November 2011, “Whilst recognizing the progress made in respect of civilian authorities, the Governing Body and the Conference called on the Government to provide for meaningful consultations between the ILO and the Ministry of Defence and senior army representatives to address both the policy and behavioural practices driving the use of forced labour by the military, including, in particular: the recruitment of children into the armed forces; forced conscription into the armed forces, fire brigade and militia reservist units; portering; construction, maintenance and servicing of military camps; and forced agricultural work” (GB.312/INS/6, paragraph 28). In response to this call, the Working Group for the Elimination of Forced Labour facilitated the first direct meeting between the ILO and the Tatmadaw (armed forces) Committee on ILO Affairs, at which all the issues and practices indicated above were discussed, and further meetings to clarify these issues were scheduled (GB.312/INS/6, paragraph 29). Regarding the under-age recruitment, the Committee notes that, since March 2011, 33 victims of under-age recruitment have been released or discharged from the military in response to complaints launched under the SU; the total number of under-age recruits released or discharged under the SU since February 2007 was 208 (GB.312/INS/6, paragraph 31).

Issuing specific and concrete instructions to the civilian and military authorities

In its earlier comments, the Committee emphasized that specific, effectively conveyed instructions to civil and military authorities, and to the population at large, were required to identify each and every field of forced labour and to explain concretely for each field the means and manner by which the tasks or services involved are to be carried out without recourse to forced labour. The Committee previously noted the Government’s statement in its June 2009 report that “the various levels of administrative authority are well aware of the orders and instructions related to forced labour prohibition issued by the higher levels”. However, the Committee notes once again that no new information has been provided by the Government in its subsequent reports on this important issue. Given the continued dearth of information regarding this issue, the Committee remains unable to ascertain that clear instructions have been effectively conveyed to all civil authorities and military units, and that bona fide effect has been given to such instructions. It therefore reiterates the need for concrete instructions to be issued to all levels of the military and to the whole population, which identify all fields and practices of forced labour and provide concrete guidance as to the means and manner by which tasks or services in each field are to be carried out, and for steps taken to ensure that such instructions are fully publicized and effectively supervised. Considering that measures to issue instructions to civilian and military authorities on the prohibitions of forced and compulsory labour are vital and need to be intensified, the Committee reiterates the firm hope that the Government will provide, in its next report, information on the measures taken in this regard, including translated copies of the instructions which have been issued reconfirming the prohibition of forced labour.

Ensuring that the prohibition of forced labour is given wide publicity

In relation to ensuring that the prohibition of forced labour is given wide publicity, and noting, in particular, that the Governing Body and the Conference called for the continuing expansion of awareness-raising activities at community level, the Committee notes from the report of the ILO Liaison Officer referred to above, from the documents submitted to the Governing Body and to the Conference Committee, as well as from the Government’s reports, that a number of awareness-raising activities concerning the forced labour situation, the legal prohibitions of forced labour and existing avenues of recourse for victims were carried out in 2011. These included, inter alia, a joint ILO–MOL awareness-raising seminar in Chin State for local authority personnel (military, police, judges and civilian authorities); two presentations on the law and practice concerning forced labour to senior police, immigration and Ministry of Home Affairs personnel, and to the Myanmar Women’s Affairs Federation; and six training seminars/workshops (one of them on a regular two-months basis) for journalists, various NGO’s and community-based organizations. The Government’s translation of the information brochure in the Shan language (the most widely used of the national languages after the Myanmar language) was in the process of printing and distribution, and the brochure in the official Myanmar language was widely distributed in every State and region by the Government and the ILO with support from NGO’s and community-based organizations (GB.312/INS/6, paragraphs 22–24). Considering that the awareness-raising activities are of crucial importance in helping to ensure that the prohibition of forced labour is widely known and applied in practice, the Committee expresses the firm hope that such activities will continue and be expanded, both at State and community level.

Noting also from the report of the ILO Liaison Officer to the Conference Committee in June 2011 referred to above that complaints alleging the use of forced labour by both military and civilian authorities continue to be received, the Committee reiterates its view that the complaints mechanism under the SU provides in itself an opportunity for the authorities to demonstrate that continued recourse to forced labour practices is illegal and would be punished as a penal offence, as required by the Convention. The Committee therefore reiterates its hope that the Government will continue to use the SU complaints mechanism as an important modality of awareness raising, and that it will provide, in its next report, the information on the impact the awareness-raising activities are having on the enforcement of criminal penalties against perpetrators of forced labour and on the imposition in actual practice of forced or compulsory labour, particularly by the military.

Making adequate budgetary provisions for the replacement of forced or unpaid labour

In its earlier comments, the Committee observed that budgeting of adequate means for the replacement of forced labour, which tends also to be unpaid, is necessary if recourse to the practice is to end. The Committee recalled in this regard that, in its recommendations, the Commission of Inquiry stated that “action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required.” Recalling also that both the Governing Body and the Conference have consistently called for the Government to facilitate ILO meetings with the Ministry of Finance and the Ministry of Planning towards ensuring that adequate budgetary allocations are made so that workers may be freely contracted and adequately remunerated, the Committee notes from the Governing Body document submitted to its November 2011 session (GB.312/INS/6) that the first meetings of the ILO with the above Ministries took place in 2011, during which the budget formulation procedure and the basic procedures for pre-allocation planning were explained, and it was clarified that, under the new administration, financial policy was in the process of being reformed in accordance with the new Constitution. It was also recognized that the potential for forced labour arose particularly at municipal level when the demand for infrastructure or repairs and maintenance outstripped budgeted allocations, and it was expected that such matters would be addressed under new governance and accountability structures (paragraphs 35–40). The Committee notes that the Government’s reports referred to above contain no new information on this issue, and that the Government merely repeats, in its report received on 2 June 2011, its previous indication that the budget allotments including the expense of labour costs for all ministries have been allocated to implement their projects. The Committee therefore hopes that the Government will provide, in its next report, detailed and precise information on the measures taken to budget adequate means for the replacement of forced or unpaid labour, as well as the information on the impact of the financial policy reform on these issues.

(iii) Ensuring the enforcement of the prohibition of forced labour

In its earlier comments, the Committee referred to section 374 of the Penal Code, which provides for the punishment, by a term of imprisonment of up to one year, of anyone who unlawfully compels any person to labour against his or her will. It recalls that, following the recommendations of the Commission of Inquiry, both the Governing Body and the Conference have sought to ensure that perpetrators of forced labour, whether civil or military, are prosecuted under the Penal Code and that sufficiently dissuasive sanctions are applied. The Committee notes from the Governing Body document submitted to its 312th Session in November 2011 (GB.312/INS/6) that, in respect of military personnel deemed responsible for the recruitment of minors, action under the military disciplinary code is now routinely taken, punishments ranging from a formal reprimand to a monetary penalty, the loss of service entitlements for pension and promotion, discharge and imprisonment (paragraph 42). The Government indicates in its reports received on 2 June and 31 August 2011 that, in the under-age recruitment cases, action was taken against 20 military officials and 110 other ranks for breaching the rules, five officials and five other ranks were dismissed and imprisoned. However, in respect of cases concerning forced labour exacted by the military, the ILO has received no information concerning the prosecution of any perpetrator under the abovementioned provision of the Penal Code. As regards the exaction of forced labour by civilian authorities, the Committee previously expressed concern that the only prosecution of perpetrators under the Penal Code in response to complaints submitted had been reported in respect of a case in 2007 already noted by the Committee in its earlier comments. The ILO has been advised that another prosecution has been initiated under the Penal Code in respect of a civilian accused of being a party to the exaction of forced labour, though no information has yet been received as to the outcome of this prosecution (GB.312/INS/6, paragraph 42).

The Committee regrets to note once again that no new information has been provided by the Government in its 2011 reports about any prosecutions against perpetrators of forced labour being pursued under section 374 of the Penal Code. The Committee therefore urges the Government to take measures to ensure that penalties imposed by law for the illegal exaction of forced or compulsory labour are adequate and strictly enforced, as required by Article 25 of the Convention, and expresses the firm hope that appropriate measures will be taken in the near future in order to ensure that perpetrators of the exaction of forced labour are prosecuted and punished with penal sanctions under section 374 of the Penal Code. The Committee asks the Government to provide, in its next report, information on the progress made in this regard.

Concluding remarks

The Committee fully endorses the conclusions concerning Myanmar made by the Conference Committee and the Governing Body, as well as the general evaluation of the forced labour situation by the ILO Liaison Officer. The Committee welcomes the positive developments, such as submission to Parliament of the draft legislation repealing the Towns Act and the Village Act of 1907; the expanded awareness-raising activities; the improvements in dealing with under-age recruitment by the military, including release of children and imposition of disciplinary and penal sanctions on military personnel; cooperation in the functioning of the SU complaints mechanism and its further extension for another year. However, the Committee observes that, in spite of the efforts made towards the implementation of the recommendations of the Commission of Inquiry, the Government has not yet fully implemented these recommendations. Besides the steps taken towards the amendment of the legislation, the Government still has to ensure that, in actual practice, forced labour is no longer imposed by the authorities, in particular by the military; and it still has to ensure that penalties for the exaction of forced labour under the Penal Code are strictly enforced against civil and military authorities. While noting the positive developments referred to above, the Committee urges the Government to redouble its efforts towards the full implementation of the recommendations of the Commission of Inquiry, by implementing the concrete practical requests addressed by the Committee to the Government. It expresses the firm hope that all the necessary measures will be taken without delay to achieve full compliance with the Convention, both in law and in practice, so as to ensure that all use of forced or compulsory labour in Myanmar is completely eliminated.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Follow-up to the recommendations made by the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

Historical background

In its earlier comments, the Committee has discussed in detail the history of this extremely serious case, which has involved the Government’s gross, long-standing and persistent non-observance of the Convention, as well as the failure by the Government to implement the recommendations of the Commission of Inquiry, appointed by the Governing Body in March 1997 under article 26 of the Constitution. The continued failure by the Government to comply with these recommendations and the observations of the Committee of Experts, as well as other matters arising from the discussion in the other bodies of the ILO, led to the unprecedented exercise of article 33 of the Constitution by the Governing Body at its 277th Session in March 2000, followed by the adoption of a resolution by the Conference at its June 2000 session.

The Committee recalls that the Commission of Inquiry, in its conclusions on the case, pointed out that the Convention was violated in national law and in practice in a widespread and systematic manner. In its recommendations (paragraph 539(a) of the report of the Commission of Inquiry of 2 July 1998), the Commission urged the Government to take the necessary steps to ensure:

(1)   that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention;

(2)   that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and

(3)   that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced, which required thorough investigation, prosecution and adequate punishment of those found guilty.

The Commission of Inquiry emphasized that, besides amending the legislation, concrete action needed to be taken immediately to bring an end to the exaction of forced labour in practice, to be accomplished through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. In its earlier comments, the Committee of Experts has identified four areas in which “concrete action” should be taken by the Government to fulfil the recommendations of the Commission of Inquiry. In particular, the Committee indicated the following measures:

–           issuing specific and concrete instructions to the civilian and military authorities;

–           ensuring that the prohibition of forced labour is given wide publicity;

–           providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and

–           ensuring the enforcement of the prohibition of forced labour.

Developments since the Committee’s previous observation

There have been a number of discussions and conclusions by ILO bodies, as well as further documentation received by the ILO, which has been considered by the Committee. In particular, the Committee notes the following information:

–           The report of the ILO Liaison Officer submitted to the Conference Committee on the Application of Standards during the 99th Session of the International Labour Conference in June 2010, as well as the discussions and conclusions of that Committee (ILC, 99th Session, Provisional Record No. 16, Part Three(A) and document D.5(D));

–           the documents submitted to the Governing Body at its 307th and 309th Sessions (March and November 2010), as well as the discussions and conclusions of the Governing Body during those sessions;

–           the communication made by the International Trade Union Confederation (ITUC) received in August 2010 together with the detailed appendices of more than 1,400 pages;

–           the communication made by the Federation of Trade Unions Kawthoolei (FTUK) received in September 2010 with appendices; and

–           the reports of the Government of Myanmar received on 16 December 2009, 4 January, 4 February, 12 and 18 March, 6 April, 19 May, 19 August, 8 September and 6 October 2010.

The Supplementary Understanding of 26 February 2007 –
Extension of the complaints mechanism

In its earlier comments, the Committee discussed the significance of the Supplementary Understanding (SU) of 26 February 2007 between the Government and the ILO, which supplemented the earlier Understanding of 19 March 2002 concerning the appointment of an ILO Liaison Officer in Myanmar. As the Committee previously noted, the SU sets out a complaints mechanism, which has as its object “to formally offer the possibility to victims of forced labour to channel their complaints through the services of the Liaison Officer to the competent authorities with a view to seeking remedies available under the relevant legislation and in accordance with the Convention”. The Committee notes that the trial period of the SU was extended for the third time, on 19 January 2010, for a further 12 months from 26 February 2010 until 25 February 2011 (ILC, 99th Session, Provisional Record No. 16, Part Three, document D.5(F)). The Committee further discusses the information on the functioning of the SU below, in the context of its comments on the other documentation, discussions and conclusions regarding this case.

Discussion and conclusions of the Conference Committee
on the Application of Standards

The Committee on the Application of Standards once again discussed this case in a special sitting during the 99th Session of the Conference in June 2010. The Conference Committee acknowledged some limited steps on the part of the Government, such as: the further extension of the SU for another year; the agreement for publication and distribution of an informative brochure on forced labour; certain activities concerning awareness raising of the complaints mechanism established by the SU, including newspaper articles in the national language; and certain improvements in dealing with under-age recruitment by the military. The Conference Committee was, however, of the view that those steps remained totally inadequate. It noted that none of the three specific and clear recommendations of the Commission of Inquiry had been implemented and strongly urged the Government to: fully implement without delay these recommendations and, in particular, to take the necessary steps to bring the relevant legislative texts into line with the Convention; to ensure the total elimination of the full range of forced labour practices, including the recruitment of children into the armed forces and human trafficking for forced labour that are still persistent and widespread; to strictly ensure that perpetrators of forced labour, whether civil or military, are prosecuted and punished under the Penal Code; to release immediately complainants and other persons associated with the use of the complaints mechanism who are currently detained, etc. The Conference Committee also called for strengthening of the capacity available to the ILO Liaison Officer to assist the Government in addressing all of the recommendations of the Commission of Inquiry, and to ensure the effectiveness of the operation of the complaints mechanism.

Discussions in the Governing Body

The Governing Body continued its discussions of this case during its 307th and 309th Sessions in March and November 2010 (GB.307/6, GB.309/6). The Committee notes that, following the discussion in November 2010, the Governing Body reconfirmed all of its previous conclusions and those of the International Labour Conference and called upon the Government and the Office to work proactively towards their realization. In the light of the commitment made by the Permanent Representative of the Government, the Governing Body called on the new Parliament to proceed without delay to bring legislation into line with the Convention. While noting the increased number of the complaints received under the SU complaints mechanism, the Governing Body considered it essential that the movement towards an environment free from harassment or fear of retribution be sustained, and called upon the Government to cooperate with the Liaison Officer on cases raised at the Officer’s own initiative. Notwithstanding the reported progress in increased awareness of both government personnel and the community at large of their rights and responsibilities under the law, further committed action is required to end all forms of forced labour, including under-age recruitment into the military and human trafficking, as well as the strict application of the Penal Code to all perpetrators, in order to bring an end to the impunity. The Governing Body also called for the continuation and intensification of awareness-raising activities undertaken jointly and severally by the Government and the ILO Liaison Officer encompassing government personnel, the military and civil society. Finally, the Governing Body welcomed the release of Daw Aung San Suu Kyi and urged that other persons still in detention, including labour activists and persons associated with the submission of complaints under the SU, would be similarly given their liberty as soon as possible.

Communication received from workers’ organizations

The Committee notes the comments made by the ITUC in its communication received in August 2010. Appended to this communication were 51 documents, amounting to more than 1,400 pages, containing extensive and detailed documentation referring to the persistence of widespread forced labour practices by civil and military authorities in almost all of the country’s states and divisions. In many cases, the documentation refers to specific dates, locations, circumstances, specific civil bodies, military units and individual officials. Specific incidents referred to in the ITUC documentation involve allegations of a wide variety of types of work and services requisitioned by authorities, including work directly related to the military (portering, construction and forced recruitment of children), as well as work of a more general nature, including work in agriculture, construction and maintenance of roads and other infrastructure work. The ITUC documentation includes, inter alia, reports submitted to it by the Federation of Trade Unions of Burma (FTUB) and its affiliate, the FTUK, which contain allegations that victims of forced labour who were encouraged by these organizations to report to the ILO, have been prosecuted for it and subsequently jailed. The ITUC documentation also includes translated copies of numerous written orders (“Order documents” or “Order letters”) apparently from military and other authorities to village authorities in Karen State, Chin State and some other states and divisions, containing a range of demands, entailing in most cases a requisition for compulsory (and uncompensated) labour. Thus, the report submitted by the FTUK, which was also directly communicated to the ILO in a communication received in September 2010 referred to above, includes translated copies of 94 Order documents issued by military authorities to village heads in Karen State between January 2009 and June 2010. The tasks and services demanded by these documents involved, inter alia, portering for the military, bridge repair, collection of raw materials, production and delivery of thatch shingles and bamboo poles, attendance at meetings, provision of money, food and other supplies, provision of information on individuals and households, etc. The report states that the above orders illustrate the persistent exaction of forced labour by the military in the rural Karen State, which significantly contributes to poverty, livelihoods vulnerability, food insecurity and displacement of large numbers of villagers. Copies of the above communications by the ITUC and the FTUK with annexes were transmitted to the Government, in September 2010, for such comments as it may wish to make on the matters raised therein.

The Government’s reports

The Committee notes the Government’s reports, referred to in paragraph 4 above, which include replies to the Committee’s previous observation. It notes, in particular, the Government’s indications concerning the Government’s continued cooperation with the various functions of the ILO Liaison Officer, including monitoring and investigating the forced labour situation and the operation of the SU complaints mechanism, as well as the Government’s efforts in the field of the awareness-raising and training activities on forced labour, including the joint ILO–Ministry of Labour (MOL) presentation made at the Deputy Township Judges’ training course in Yangon in March 2010 and the distribution of booklets on the SU and informative, simply worded brochures on forced labour. The Committee also notes the Government’s indications concerning measures taken to prevent recruitment of under-age children and to release newly recruited under‑age soldiers from September 2009 up to August 2010. As regards the amendment of the legislation, the Government indicates that the Ministry of Home Affairs has been coordinating with the concerned departments in reviewing the Village Act and Towns Act. However, no action has been taken or contemplated to amend section 359 of the Constitution. The Committee also notes that the Government has not yet supplied its comments on the numerous specific allegations contained in the communications from the ITUC and the FTUK referred to above, as well as in the communication by the ITUC received in September 2009. The Committee urges the Government to respond in detail in its next report to the numerous specific allegations of continued, widespread imposition of forced or compulsory labour by military and civil authorities throughout the country, which are documented in the above communications from the ITUC and the FTUK, making particular reference to the “Order documents”, which constitute conclusive evidence of the systematic imposition of forced labour by the military.

Assessment of the situation

Assessment of the information available on the situation of forced labour in Myanmar in 2010 and in relation to the implementation of the recommendations of the Commission of Inquiry and compliance with the Convention by the Government will be discussed in three parts, dealing with: (i) amendment of legislation; (ii) measures to stop the exaction of forced or compulsory labour in practice; and (iii) enforcement of penalties prescribed under the Penal Code and other relevant provisions of law.

(i)        Amendment of legislation

The Committee previously noted the Government’s statement in its report received on 27 August 2009 that the Village Act and the Towns Act “have been put into dormant [sic] effectively and legally” by Order No. 1/99 (Order directing not to exercise powers under certain provisions of the Towns Act 1907, and the Village Act 1907) as supplemented by the Order of 27 October 2000. The Committee observed that the latter orders had yet to be given bona fide effect and do not dispense with the separate need to eliminate the legislative basis for the exaction of forced labour. Noting the Government’s indication in its report received on 19 August 2010, that the Ministry of Home Affairs has been coordinating with the concerned departments in reviewing these Acts, the Committee expresses the firm hope that the long overdue steps to amend or repeal them will soon be taken and that legislation will be brought into conformity with the Convention. The Committee asks the Government to provide, in its next report, information on the progress made in this regard.

In its earlier comments, the Committee referred to section 359 of the Constitution (Chapter VIII – Citizenship, fundamental rights and duties of citizens), which excepts from the prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public”. The Committee observed that the exception encompasses permissible forms of forced labour that exceed the scope of the specifically defined exceptions in Article 2(2) of the Convention and could be interpreted in such a way as to allow a generalized exaction of forced labour from the population. The Committee notes with regret the Government’s statement in its report received on 19 August 2010, that “it is completely impossible to amend the Constitution … as it was ratified by the referendum held in May 2008 with 92.48 per cent affirmative votes”. The Committee urges the Government once again to take the necessary measures with a view to amending section 359 of Chapter VIII of the Constitution, in order to bring it into conformity with the Convention.

(ii)       Measures to stop the exaction of forced or compulsory labour in practice

Information available on current practice. In paragraph 8 of this observation, the Committee referred in detail to the communications received from the ITUC and the FTUK, which contain well-documented allegations that forced and compulsory labour continued to be exacted from local villagers in 2010 by military and civil authorities in almost all of the country’s states and divisions. The information in the numerous appendices refers to specific dates, locations and circumstances of the occurrences, as well as to specific civil bodies, military units and individual officials responsible for them. According to these reports, forced labour has been requisitioned both by military personnel and civil authorities, and has taken a wide variety of forms and involved a variety of tasks.

The Committee notes from the report of the ILO Liaison Officer to the Conference Committee in June 2010 (ILC, 99th Session, Provisional Record, No. 16, Part Three, document D.5(C)) that, while the SU complaints mechanism continues to function and the awareness-raising activities continue to take place, complaints alleging the use of forced labour by both military and civil authorities continue to be received (paragraphs 5 and 6). The ILO Liaison Officer also refers to numerous requests to the authorities to release identified victims of under-age military recruitment and states that the work related to under-age recruitment under the SU supports the activity of the UN Country Task Force on Monitoring and Reporting on Children Affected by Armed Conflict under Security Council Resolution 1612 (paragraphs 8 and 12). According to the report, a number of complaints of human trafficking for forced labour have been received; three such cases have been referred to the ILO anti-trafficking projects based outside the country and have resulted in the release of 56 persons from a forced labour situation in neighbouring countries. The ILO Liaison Officer further states that “non-verifiable available evidence does suggest that the use of forced labour by the civilian authorities has been reduced at least in some locations and parts of the country”, which is most likely due to the extensive awareness-raising activities and the heightened awareness of local authority personnel (paragraphs 7 and 11). However, according to the Governing Body document submitted to its 307th Session in March 2010, “Whilst there are indications from some parts of the country that the actual incidence of forced labour imposed by civilian authorities has diminished to some extent, this on its own would not account for the reduction in complaints. The use of forced labour, particularly by the military, remains an issue throughout the country” (GB.307/6, paragraph 5).

Issuing specific and concrete instructions to the civilian and military authorities. In its earlier comments, the Committee emphasized that specific, effectively conveyed instructions to civil and military authorities, and to the population at large, are required which identify each and every field of forced labour, and which explain concretely for each field the means and manner by which the tasks or services involved are to be carried out without recourse to forced labour. The Committee previously noted the Government’s general statement in its report received on 1 June 2009 that “the various levels of administrative authority are well aware of the orders and instructions related to forced labour prohibition issued by the higher levels”. However, the Committee notes that no new information has been provided by the Government in its subsequent reports on this important issue. Given the continued dearth of information regarding this issue, the Committee remains unable to ascertain that clear instructions have been effectively conveyed to all civil authorities and military units, and that bona fide effect has been given to such instructions. It reiterates the need for concrete instructions to be issued to all levels of the military and to the whole population, which identify all fields and practices of forced labour and provide concrete guidance as to the means and manner by which tasks or services in each field are to be carried out, and for steps taken to ensure that such instructions are fully publicized and effectively supervised. Considering that measures to issue instructions to civilian and military authorities on the prohibitions of forced and compulsory labour are vital and need to be intensified, the Committee expresses the firm hope that the Government will provide, in its next report, information on the measures taken in this regard, including translated copies of the instructions which have been issued reconfirming the prohibition of forced labour.

Ensuring that the prohibition of forced labour is given wide publicity. In relation to ensuring that the prohibition of forced labour is given wide publicity, the Committee notes from the report of the ILO Liaison Officer referred to above, from the documents submitted to the Governing Body and to the Conference Committee, as well as from the Government’s reports, that a number of awareness-raising activities concerning the forced labour situation, the legal prohibitions of forced labour and existing avenues of recourse for victims were carried out in 2010. These included, inter alia, three joint ILO–MOL awareness-raising seminars at state/division level for civil and military personnel held in Rhakine State, Magway Division and Bago Division; two joint ILO–MOL presentations on the law and practice on forced labour to a refresher training course for township judges and deputy judges; and three training seminars/presentations for members of the armed forces, the police and the prison service on the law and practice concerning under-age recruitment into the military. During the meeting of the ILO mission with the Minister of Labour (January 2010), the Government agreed to the publication of a simply worded brochure, in Myanmar language, explaining the law pertaining to forced labour, including under-age recruitment, and the procedures available to victims for lodging a complaint (GB.307/6, paragraph 9). The Governing Body, while calling for the continuation and intensification of awareness-raising activities during its November 2010 session, called on the Government to continue to actively support the wide distribution of the agreed brochure and its translation into all local languages (GB.309/6, paragraph 4). The Committee reiterates its view that such activities are critical in helping to ensure that the prohibition of forced labour is widely known and applied in practice, and should continue and be expanded.

The Committee notes from the Governing Body document submitted to its 309th Session in November 2010 (GB.309/6), that the number of complaints received under the SU complaints mechanism continued to increase: over the period 1 June to 21 October 2010, 160 complaints have been received, as compared to 65 complaints received during the corresponding period in 2009 and 25 for the same period in 2008 (paragraph 18). As at 21 October 2010, a total of 503 complaints have been received under the SU mechanism; 288 cases (assessed to be within the ILO mandate) have been submitted to the Government Working Group for investigation, of which 132 have been resolved with varying degrees of satisfaction; 127 forced and/or under-age recruits have been released/discharged from the military in association with complaints under the SU mechanism (paragraphs 14 and 15). The Committee reiterates its view that the complaints mechanism under the SU in itself provided an opportunity to the authorities to demonstrate that continued recourse to the practice is illegal and would be punished as a penal offence, as required by the Convention. The Committee therefore hopes that the Government will intensify and expand the scale and scope of its efforts to give wide publicity to and raise public awareness about the prohibition of forced labour, including the use of the SU complaints mechanism as an important modality of awareness raising; that it will undertake awareness-raising activities in a more coherent and systematic way; and that it will provide, in its next report, information on measures taken or contemplated in this regard. The Committee further hopes that the Government will provide information on the impact of awareness-raising activities on the enforcement of criminal penalties against perpetrators of forced labour and on the imposition in actual practice of forced or compulsory labour, particularly by the military.

Making adequate budgetary provisions for the replacement of forced or unpaid labour. In its earlier comments, the Committee observed that budgeting of adequate means for the replacement of forced labour, which tends also to be unpaid, is necessary if recourse to the practice is to end. The Committee recalls in this regard that, in its recommendations, the Commission of Inquiry stated that “action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required”. The Committee has noted the Government’s repeated indication in its reports, including the report received on 19 August 2010, that the budget allotments including the expense of labour costs for all ministries have been allocated to implement their projects. Noting that no other information has been provided by the Government on this important issue, the Committee requests the Government once again to provide, in its next report, detailed and precise information on the measures taken to budget adequate means for the replacement of forced or unpaid labour.

(iii)      Ensuring the enforcement of the prohibition of forced labour

The Committee previously noted that section 374 of the Penal Code provides for the punishment, by a term of imprisonment of up to one year, of anyone who unlawfully compels any person to labour against his or her will. It also noted that Order No. 1/99 and its Supplementing Order of 27 October 2000, as well as the series of instructions and letters issued by government authorities in 2000–05 with a view to securing the enforcement of those Orders, provide for persons “responsible” for forced labour, including members of the armed forces, to be referred for prosecution under section 374 of the Penal Code. The Committee notes from the Governing Body document submitted to its 309th Session in November 2010 (GB.309/6) that, in respect of cases concerning forced labour exacted by the military, the ILO has received no information concerning the prosecution of any perpetrator under the above provision of the Penal Code. The ILO has been advised that, in four instances, disciplinary action has been taken under military procedures in response to complaints submitted under the SU mechanism, and that in some instances the solution to the complaint has resulted in the issuance of orders requiring behavioural change (paragraph 11). As regards cases concerning forced labour exacted by civilian authorities, prosecution of perpetrators under the Penal Code in response to complaints submitted has been reported only in respect of Case No. 1, which has been already noted by the Committee in its earlier comments and resulted in the prosecution of two civilian officials, who were punished with penalties of imprisonment. In other instances, the solution has involved administrative penalties, including dismissal or transfer, with the majority of cases being resolved by addressing the situation of the complainants without punitive action being taken against the perpetrators (paragraph 12). As regards cases of forced and/or under-age recruitment, a punitive and disciplinary process has increasingly been applied and military perpetrators have been referred to summary trial under military regulations, which resulted in imprisonment in three instances; other penalties which appear to be regularly administered included the loss of seniority, pensionable rights or several days’ pay, as well as the issuance of various levels of formal reprimand (paragraph 13).

The Committee notes with regret that no new information has been provided by the Government in its 2010 reports about any prosecutions against perpetrators of forced labour being pursued under section 374 of the Penal Code. The Committee points out once again that the illegal exaction of forced labour must be punished as a penal offence, rather than treated as an administrative issue, and expresses the firm hope that appropriate measures will be taken in the near future in order to ensure that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour are strictly enforced, in conformity with Article 25 of the Convention. It asks the Government to provide, in its next report, information on the progress made in this regard.

Concluding remarks

The Committee fully endorses the conclusions concerning Myanmar made by the Conference Committee and the Governing Body, as well as the general evaluation of the forced labour situation by the ILO Liaison Officer. The Committee observes that, in spite of the efforts made, particularly in the field of awareness raising, cooperation in the functioning of the SU complaints mechanism and in the release of under-age recruits from the military, the Government has not yet implemented the recommendations of the Commission of Inquiry: it has failed to amend or repeal the Towns Act and the Village Act; it has failed to ensure that, in actual practice, forced labour is no longer imposed by the authorities, in particular by the military; and it has failed to ensure that penalties for the exaction of forced labour under the Penal Code have been strictly enforced against civil and military authorities. The Committee continues to believe that the only way that genuine and lasting progress in the elimination of forced labour can be made is for the Myanmar authorities to demonstrate unambiguously their commitment to achieving that goal. The Committee urges the Government once again to demonstrate its commitment to rectify the violations of the Convention identified by the Commission of Inquiry, by implementing the concrete practical requests addressed by the Committee to the Government, and that all the long‑overdue steps will be taken to achieve compliance with the Convention, both in law and in practice, so that the most serious and long-standing problem of forced labour will be finally resolved.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Historical background

1. In its previous comments the Committee has discussed in detail the history of this extremely serious case, which has involved gross, methodical and pervasive breaches of the Convention enduring for many years, and which is also manifested by the long-standing failure of the Government to implement the recommendations of the Commission of Inquiry, appointed by the Governing Body in March 1997 under article 26 of the Constitution.

2. The Committee recalls that the Commission of Inquiry concluded that the obligation under the Convention to suppress the use of forced or compulsory labour was being violated in Myanmar in national law as well as in actual practice in a widespread and systematic manner. In its recommendations (paragraph 539(a) of the Commission’s report of 2 July 1998), the Commission urged the Government to take the necessary steps to ensure:

–      that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention;

–      that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military, an outcome which required concrete action to be taken immediately for each and every of the many fields of forced labour and to be accomplished through public acts of the Executive, promulgated and made known to all levels of the military and to the whole population; and

–      that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced, which required thorough investigation, prosecution and adequate punishment of those found guilty.

Developments since the Committee’s previous observation

3. There have been numerous discussions and conclusions reached by ILO bodies, as well as further documentation received by the ILO, which have been considered by the Committee. These include the following:

–      the report of the ILO Liaison Officer (ILC, 98th Session, Provisional Record No. 16, Part Three, Doc. D.5.C) submitted to the Conference Committee on the Application of Standards during the 98th Session of the International Labour Conference in June 2009, as well as the discussions and conclusions of that Committee (ILC, 98th Session, Provisional Record No. 16, Part Three, A and Doc. D.5.B);

–      the documents submitted to the Governing Body at its 304th and 306th Sessions (March and November 2009), as well as the discussions and conclusions of the Governing Body during those sessions;

–      the communication by the International Trade Union Confederation (ITUC) received in September 2009 which includes an appendix of 74 documents amounting to more than 1,000 pages, a copy of which was transmitted to the Government for comments on the matters raised therein;

–      the Agreement of 26 February 2009 to extend the trial period of the Supplementary Understanding of 26 February 2007; and

–      the reports of the Government of Myanmar received on 10 and 24 March, 1 and 4 June, 27 August, 6 and 21 October 2009.

4. The Supplementary Understanding of 26 February 2007 – extension of the complaints mechanism. The Committee notes that the trial period of the complaints mechanism under the Supplementary Understanding (SU) of 26 February 2007 between the Government and the ILO was extended on 26 February 2009 for one year, until 25 February 2010 (ILC, 98th Session, Provisional Record No. 16, Part Three, Doc. D.5.F., Appendix II). The SU supplements the Understanding of 19 March 2002 concerning the appointment of an ILO Liaison Officer in Myanmar and has as its object to “formally offer the possibility to victims of forced labour to channel their complaints of forced labour through the services of the Liaison Officer to the competent authorities with a view to seeking remedies available under the relevant legislation and in accordance with the Convention”. Information about the functioning of this important mechanism is discussed below in the sections on monitoring and enforcement.

5. Discussion and conclusions of the Conference Committee on the Application of Standards. The Committee on the Application of Standards once again discussed this case in a special sitting during the 98th Session of the Conference in June 2009. The Conference Committee, inter alia, acknowledged some limited steps on the part of the Government of Myanmar: the further extension of the SU for another year; certain activities concerning awareness raising of the complaints mechanism established by the SU; certain improvements in dealing with under-age recruitment by the military; and the distribution of publications relating to the SU. The Committee was however of the view that those steps were totally inadequate, and it strongly urged the Government to fully implement without delay the recommendations of the Commission of Inquiry.

6. Discussions in the Governing Body. The Governing Body also continued its discussions of this case during its 303rd and 306th Sessions in March and November of 2009 (GB.304/5(Rev.), GB.306/6). Following the discussion in November 2009 the Governing Body, inter alia, reconfirmed the continuing validity of its previous conclusions and those of the International Labour Conference. It noted the Government’s cooperation regarding complaints of forced labour submitted under the SU, as well as the joint Government–ILO awareness-raising activities. However, it called on the Government to strengthen the capacity of the ILO in the framework of the SU to deal with complaints throughout the country and, in particular, to facilitate adjustments to the staff capacity of the Office of the Liaison Officer, as provided for in article 8 of the SU, so that an increased workload could be met. It also called for the immediate release of all persons currently detained being complainants, facilitators and others associated with the SU complaints mechanism. It further called for particularly accessible material in local languages for awareness raising, and it reiterated the need for an authoritative statement by the senior leadership against the continued use of forced labour and the need to respect freedom of association.

7. Communication received from the International Trade Union Confederation. The information contained in the communication from the ITUC received in September 2009, referred to in paragraph 3, is discussed below in the section on current practice.

8. The Government’s reports. The reports received from the Government, referred to in paragraph 3, include replies to the Committee’s previous observation. They include information, inter alia, about joint ILO–Ministry of Labour (MOL) publicity, awareness-raising and training activities on forced labour; the Government’s continued cooperation with the various functions of the ILO Liaison Officer including monitoring and investigating the forced labour situation, the operation of the SU complaints mechanism, and the implementation of technical projects; and ongoing efforts the Government is making to enforce the prohibitions of forced labour. The reports also include a reply to the ITUC communication of September 2008 by way of a categorical dismissal of the allegations of forced labour contained therein. The Government also indicates that no action was being contemplated to amend or repeal the Village Act and Towns Act or to amend section 359 of the New State Constitution. Further references to the Government’s reports are made in the discussion below.

Assessment of the situation

9. Assessment of the information available on the situation of forced labour in Myanmar in 2009 and in relation to the implementation of the recommendations of the Commission of Inquiry and compliance with the Convention by the Government will be discussed in three parts, dealing with: (i) amendment of legislation; (ii) measures to stop the exaction of forced or compulsory labour in practice; and (iii) enforcement of penalties prescribed under the Penal Code and other relevant provisions of law.

I.         Amendment of legislation

10. With regard to the Village Act and the Towns Act, referred to in paragraph 2, the Committee notes the statement of the Government in its report received on 27 August 2009 that these laws “have been put into dormant [sic] effectively and legally” by Order No. 1/99 (Order Directing Not to Exercise Powers Under Certain Provisions of the Town Act, 1907, and the Village Act, 1907) as supplemented by the Order of 27 October 2000. In its previous comments, the Committee has observed that the latter orders have yet to be given bona fide effect and do not dispense with the separate need to eliminate the legislative basis for the exaction of forced labour. Noting the indication of the Government representative, during the discussion in the Governing Body at its 306th Session in November 2009, that these Acts were under review by the Ministry of Home Affairs, the Committee urges the Government to take the long overdue steps to amend or repeal them and thereby to bring its law into conformity with the Convention. The Committee hopes that in its next report the Government will provide information confirming that such steps have been taken.

11. In its previous observation the Committee noted that the Government has included in section 359 of the New State Constitution (Chapter VIII – Citizenship, Fundamental Rights and Duties of Citizens) a prohibition of forced labour containing an exception for “duties assigned by the Union in accordance with the law in the interest of the public”. The Committee observed that the exception encompasses permissible forms of forced labour that exceed the scope of the specifically defined exceptions in Article 2(2) of the Convention and could be interpreted in such a way as to allow a generalized exaction of forced labour from the population. The Committee notes with regret the statement of the Government in its report received on 27 August 2009, that section 359 of the New State Constitution “adequately captures the spirit” of the Convention. The Committee once again urges the Government to take steps to amend section 359 of Chapter VIII of the new Constitution, in order to bring its law into conformity with the Convention.

II.        Measures to stop the exaction of forced or compulsory labour in practice

12. Information available on current practice. The Committee notes from the ITUC’s communication referred to above, the well-documented allegations that forced and compulsory labour continued to be exacted from local villagers in 2009 by military and civil authorities and to have occurred in all but one of the country’s states and divisions. The information in the appendices refers to specific dates, locations and circumstances of the occurrences, and to specific civil bodies, military units and individual officials responsible for them. According to these reports, forced labour has been requisitioned both by military personnel and civil authorities such as village heads, and has taken a wide variety of forms and involved a variety of tasks, including: construction of bridges and roads; forced portering for military personnel; prison labour, construction and maintenance of army camps; confiscation of food supplies and extortion of money; forced recruitment of child soldiers; forced sentry duty; and human minesweeping. The appendices also include translated copies of more than 100 Order documents and Order “letters” for the requisition of forced (and uncompensated) labour issued between December 2008 and June 2009 to villagers and village heads in Chin, Karen, Mon, and Rakhaing States and in Irrawaddy, Pegu, and Tenasserim Divisions. The tasks and services demanded by these call-up orders involved, inter alia, portering for the military; road repair and other infrastructure projects, and on paddy plantations; production and delivery of thatch shingles and bamboo poles; recruitment of children as soldiers; attendance at meetings; provision of money and alcohol; provision of information on individuals and households; registration of villagers in State-controlled NGOs; and restrictions on travel and use of muskets. Noting the conspicuous absence of any comment from the Government on such Order letters forwarded by the ITUC in previous years, the Committee requests that in its next report the Government respond in detail to the entirety of the September 2009 communication of the ITUC, and in particular to the Order letters referred to above which constitute conclusive evidence of the continued systematic imposition of forced labour by military and civil authorities throughout the country in 2009.

13. The Committee notes the observations of the ILO Liaison Officer that the SU mechanism continues to function, yet “the overall forced labour situation remains serious in the country”. (GB.304/5/1(Rev.), paragraph 2). Victims of under-age military recruitment with substantiated complaints are regularly discharged from the military, yet the “continued and repeated illegal recruitment of children by military personnel” is also confirmed (GB.306/6, paragraphs 5 and 7). In terms of the experience with the SU complaints mechanism, the Liaison Officer refers to action taken by the authorities “to ensure that the practice of forced labour does not continue and further complaints are not received from that area” from which they originate (GB.306/6, paragraph 10). However, he also refers to the behaviour of local authorities, both civil and military, as well as judicial, who refuse to accept the validity of settlement agreements reached under the SU process, continue traditional forced labour practices, and harass those who attempt to exercise their rights under the law (GB.306/6, paragraph 15).

14. In its previous observations the Committee, recalling the Commission’s recommendation that concrete action needed to be taken immediately for each and every of the many fields of forced labour, identified four types of “concrete action” the Government needed to take, without which an end to imposition of forced labour in practice could not be achieved: issuing specific and concrete instructions on forced labour and on its prohibitions to civilian and military authorities; giving wide publicity to the prohibitions on forced labour; making adequate budgetary provisions for replacing forced labour with free wage labour; and monitoring the practice of forced labour and efforts to enforce its prohibitions.

15. Issuing specific and concrete instructions. In its previous observations the Committee has emphasized that specific, effectively conveyed instructions to civil and military authorities, and to the population at large, are required which identify each and every field of forced labour, and which explain concretely for each field the means and manner by which the tasks or services involved are to be carried out without recourse to forced labour. The Committee has noted that, with one exception (namely, the “Additional Instruction” issued by the Department of General Administration of the Ministry of Home Affairs, No. 200/108/Oo, dated 2 June 2005 and noted by the Committee in its 2005 observation), the series of instructions and letters issued by Government authorities in 2000, 2004 and 2005, which were intended to secure compliance with the prohibition of forced labour under Order No. 1/99 and its supplementing Order of 27 October 2000, were not shown to have met these criteria.

16. The Committee notes that in its report received on 1 June 2009 the Government states only that “the various levels of administrative authority are well aware of the orders and instructions related to forced labour prohibition issued by the higher levels”. The document submitted to the Governing Body in March 2009 (GB.304/5/1(Rev.)) includes an indication, without a date specified, that the General Administration Department had issued instructions through the state and divisional administrative structures reconfirming the prohibition of forced labour; and that this instruction had been transmitted to township and village tract levels (paragraph 6). The Government indicates in its report received on 27 August 2009 that all instructions and directives “contain the details [sic] necessary measures for the implementation of the Orders”. The Committee also notes the observation of the ILO Liaison Officer that a number of forced labour complaints, particularly involving confiscation of farmers’ croplands, result from the improper application of economic and agricultural policies not directly concerned with the practice of forced labour, yet the Government has not agreed to consider policy-application training designed to stop the application of such policies in a way that leads to the imposition of forced labour (Report to the Conference Committee, paragraph 14; GB.304/5/1(Rev.), paragraph 9). The Committee notes that once again the information provided by the Government is grossly deficient. It reiterates the need for concrete instructions to be issued to all levels of the military and to the whole population, which identify all fields and practices of forced labour and provide concrete guidance as to the means and manner by which tasks or services in each field are to be carried out, and by which any other relevant government policies are to be implemented, without recourse to forced labour or forced contributions from the population, and for steps taken to ensure that such instructions are fully publicized and effectively supervised. The Committee requests the Government to provide in its next report information about the measures of this nature it is taking, including a translated and dated copy of the text of the instructions it states have been issued reconfirming the prohibition of forced labour and of the “necessary details” it states are contained in its directives and instructions.

17. Making adequate budgetary provisions for the replacement of forced and unpaid labour. The Committee recalls that in its recommendations the Commission of Inquiry drew attention to the need to make adequate budgetary provisions to hire free wage labour for the public activities which are today based on forced and unpaid labour. In its report received on 27 August 2009, the Government has reiterated previous indications in stating that it “provides the budget allotment including labour costs for all Ministries to implement their respective projects”. In previous observations the Committee, noting the information available on actual practice which shows that forced labour continues to be imposed in many parts of the country, particularly in those areas with a heavy military presence, has considered it obvious that any budgetary allocations that are specifically designated for the recruitment of free wage labour have not been adequate or adequately utilized. The Committee once again urges the Government to use state budget allotments to provide civil and military authorities at all levels the financial means for utilizing voluntary paid labour for needed tasks and services, and which are adequate enough to eliminate the material incentives for recourse to forced and unpaid labour, and that it report in detail on the steps taken to that end and on the effect of such measures in actual practice.

18. Giving publicity to and raising awareness about forced labour and its prohibitions. The Committee notes from the Government’s reports and the documents submitted to the Governing Body and to the Conference Committee, the indications that a number of activities to give publicity to and raise awareness about the forced labour situation, the legal prohibitions of forced labour and existing avenues of recourse for victims were carried out in 2009. These included, inter alia, a joint ILO–MOL awareness-raising seminar for civil and military personnel held in Karen State and Northern Shan State in April and May of 2009; a joint seminar held in Rhakine State with participants representing both the civil and military authorities; and a joint presentation to a refresher training programme for senior township judges. A booklet comprised of the texts of the SU and related documents and translated into the Myanmar language, was prepared (GB.304/5/1(Rev.), paragraph 4) and distributed to civilian and military authorities nationwide, to civil society groups, and the general public for awareness-raising purposes (Report to the Conference Committee, paragraph 18). Some 16,000 copies had been circulated as of November 2009; however, the Government had yet to agree to the production of a simply-worded brochure, translated into local languages, which outlined the law against forced labour and the procedures available to victims to exercise rights under the law (GB.306/6, paragraph 10). The Government, in its reports received on 6 and 21 October 2009, refers to a number of activities carried out in May and August of 2009 by the Committee for the Prevention of Military Recruitment of Under-Age Children, including law lectures for officer trainees at military camps; supervision of training on recruitment procedures at military training schools and basic training units; and informational visits to numerous regiments and recruitment centres. A rural infrastructure project in the cyclone-affected area of the Irrawaddy Delta implemented by the Office of the ILO Liaison Officer with cooperation from the MOL, a second phase of which was carried out through September of 2009 but with a further extension declined by the Government, included awareness-raising seminars (GB.306/6, paragraph 22) and was reported to have played a valuable role in raising awareness in the cyclone-affected area as to the rights and responsibilities in employment, in particular those relating to the prohibition of forced labour (GB.304/5/1(Rev.), paragraph 23). The Committee notes the indication of the Liaison Officer in November 2009 of an increase in new complaints filed under the SU complaints mechanism during the five-and-a-half-month period from mid-May through 28 October 2009, which he considered to be due to heightened awareness generally of citizens’ rights, the maturing and expansion of the facilitators’ network, and an increased readiness to present complaints. The Liaison Officer further observed, however, that awareness levels, particularly in rural areas, remained low (GB.306/6, paragraph 4). The Government had also yet to issue an authoritative public statement at the highest level, as called for by ILO supervisory organs, to clearly reconfirm its policy prohibiting all forms of forced labour throughout the country and its intention to prosecute perpetrators, both civilian and military (Report to the Conference Committee, paragraph 24, GB.306/6, Conclusions).

19. The Committee considers the publicity and awareness-raising activities noted above to represent a step forward, and the recent increase in new complaints received under the SU and partly attributed to such activities to be a positive sign; however, these measures continue to be largely ad hoc, partial and piecemeal in nature. The Committee reiterates the need for the Government to commit itself more fully to publicity and awareness-raising activities, to conceive and undertake them in a more coherent and systematic way, and with a view to the tangible effect they have on the observance in practice by civil and military authorities and personnel at all levels, and in all areas of the country, of their legal obligation not to exact forced labour, and on the efforts of victims of forced labour throughout the country to seek legal recourse. The Committee hopes that in its next report the Government will supply information on measures of this nature being taken or contemplated, including information about their practical effect, observed or anticipated.

20. Monitoring the situation of forced labour including efforts to enforce its prohibitions. The Committee notes the important role in assisting the Government with monitoring and investigating the situation of forced labour in Myanmar, including enforcement of rights and obligations arising out of the prohibitions of forced labour, which has been accorded to the ILO Liaison Officer, both under the broad mandate of the Understanding of 2002 and in the framework of the SU complaints mechanism. The Committee notes that several ad hoc investigation missions and inspection tours were carried out by the Liaison Officer and the Ministry of Labour in late 2008 and early 2009, and that presentations were made to NGOs and civil society groupings, in part, to seek their support in forced labour observation and reporting (GB.304/5/1(Rev.), paragraphs 5 and 6). A small sub-unit of the Office of the Liaison Officer has been established for dealing with under-age recruitment complaints and for monitoring and reporting on the child soldier situation nationwide (GB.306/6, paragraph 21). The Committee considers these to be positive steps. At the same time, however, the reach of the SU mechanism in a country the size of Myanmar is still very limited (GB.304/5/1(Rev.), paragraph 10); the ILO Liaison Officer is based in Yangon and is provided meagre facilities and a small staff (paragraph 12); he does not have the authority to initiate complaints on the basis of his own observation or information (GB.306/6, paragraph 6) or his own investigations of under-age military recruitment (GB.304/5/1(Rev.), paragraph 7); and there are continuing practical impediments to the physical ability of victims of forced labour or their families to complain, such that a network of complaints facilitators remains a necessity (Report to the Conference Committee, paragraph 12). The complaints mechanism of the SU is being undermined (GB.306/6, paragraph 4) by the continued imprisonment of labour activists with a record of support in the facilitation of complaints under the SU (GB.306/6, paragraphs 14 and 16), by serious cases of apparent harassment and judicial retaliation against complaining victims, facilitators and other persons associated with complaints filed with the ILO (GB.306/6, paragraphs 11–14; Report to Conference Committee, paragraph 10), and by the refusal of local civil and military authorities, as well as local courts, to respect the terms of formal complaint settlements, notably the agreements in several land-confiscation cases that resulted from joint ILO–MOL investigative missions carried out in Magwe Division in December 2008 and March 2009 (GB.306/6, paragraphs 13 and 15). In this regard notations in the Register of cases under the SU mechanism indicate a number of cases, including Cases Nos 149, 150, 151, 204, 205 and 206, in which complainants chose not to pursue their claims out of fear of reprisals (GB.306/6, Appendix IV). A formal proposal of the ILO Liaison Officer to the Working Group for joint action to address these issues with a view to achieving lasting solutions has not been accepted by the Government (GB.306/6, paragraph 15). Noting the obligation of the Government under the 2002 Understanding and the 2007 SU to take appropriate steps to enable the ILO Liaison Officer to effectively discharge the work and responsibilities arising therein, including extending to his Office the requisite facilities and support, the Committee strongly urges the Government to take immediate steps to address the serious problems noted above, and it requests information from the Government in its next report on the progress of those steps. More generally, the Committee urges the Government to take necessary measures to ensure that a climate exists for a monitoring and investigation process that is effective, national in its reach and scope, and fully respected by all elements and all levels of society. It requests that in its next report the Government supply information on the progress of measures so taken or contemplated.

III.       Enforcement of penalties

21. The Committee recalls that section 374 of the Penal Code provides for the punishment, by a term of imprisonment of up to one year, of anyone who unlawfully compels any person to labour against his or her will, and that Order No. 1/99 and its supplementing Order of 27 October 2000, as well as the series of instructions and letters, issued by Government authorities in 2000, 2004 and 2005 with a view to securing the enforcement of those orders, provide for persons “responsible” for forced labour, including members of the armed forces, to be referred for prosecution under section 374 of the Penal Code or other applicable provisions of law. The Committee notes that none of the complaints under the SU mechanism assessed and forwarded by the ILO Liaison Officer to the Working Group for investigation and appropriate action resulted, in 2009, in a decision to prosecute perpetrators of forced labour. The notations in the Register of cases under the SU mechanism (as of 23 October 2009) indicate that in at least 14 of the closed cases, the Liaison Officer considered the penalties or punishment imposed or disciplinary actions taken to be inadequate, and that the Working Group has routinely rejected recommendations made for more serious sanctions to be applied (GB.306/6, Appendix IV). Recent cases involving complaints of under-age military recruitment have resulted in the discharge of the child victims but with only administrative sanctions, if any, imposed on the perpetrators; there have been no prosecutions under criminal law (GB.304/5/1, paragraph 7). In Case No. 127 an explicit recommendation by the Liaison Officer for criminal prosecution was rejected. The Committee notes the observation of the Liaison Officer that the need for the imposition of meaningful penalties on perpetrators “continues to be a concern, particularly in respect of cases involving military personnel” (GB.306/6, paragraph 7), and that in the most serious cases of under-age military recruitment the penalties remained inadequate (Report to the Conference Committee, paragraph 15). The Committee urges the Government once again to take measures to ensure that the penalties imposed by law for the illegal exaction of forced or compulsory labour are adequate and strictly enforced, as required by Article 25 of the Convention, and it requests the Government to supply information in its next report on the progress of measures taken to that end. The Committee hopes that fulfilment of the Government’s commitments as a party to the SU will be better reflected in the processing of cases forwarded to the Working Group by the ILO Liaison Officer, in terms of greater weight being accorded to the preliminary assessments of the Liaison Officer and a greater number of investigations leading to prosecutions, convictions and the imposition of criminal penalties rather than to case closures, and it requests information on progress being made in that vein.

Concluding comments

22. In summary, the Committee observes that the Government has yet to implement the recommendations of the Commission of Inquiry; to wit: it has failed to amend or repeal the Towns Act and the Village Act; it has taken no concrete actions shown to have brought about in any significant and lasting way an end to the exaction of forced labour in practice; and it has failed to ensure that penalties for the exaction of forced labour under the Penal Code or other relevant provisions of law have been strictly enforced against civil and military authorities and personnel who are responsible for it. While the Office of the ILO Liaison Officer, by virtue of the broad mandate set forth under the Understanding of 19 March 2002, and the procedures and mechanisms provided for under the SU, has been accorded a critical role in assisting the Government in its efforts to bring about the elimination of forced labour, the robust and fully fledged cooperation of the Government that is vital to the fulfilment of that role, including the cooperation needed in extending the requisite facilities and support and in engendering full respect for, and trust in, these special organs by the society at large, leaves much room for improvement. The Committee once again urges the Government to give credence to its expressed commitment to eliminate the use of forced labour in Myanmar and take the long overdue steps that are required to implement the recommendations of the Commission of Inquiry and achieve compliance with the Convention in law and in practice.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Historical background

1. In its earlier comments, the Committee discussed in detail the history of this extremely serious case, which has involved the Government’s long-standing, persistent non-observance of the Convention, as well as the failure by the Government to implement the recommendations of the Commission of Inquiry, appointed by the Governing Body in March 1997 under article 26 of the Constitution. The continued failure by the Government to comply with these recommendations and the observations of the Committee of Experts, as well as other matters arising from the discussion in the other bodies of the ILO, led to the unprecedented exercise of article 33 of the Constitution by the Governing Body at its 277th Session in March 2000, followed by the adoption of a resolution by the Conference at its June 2000 session.

2. The Committee recalls that the Commission of Inquiry, in its conclusions on the case, pointed out that the Convention was violated in national law and in practice in a widespread and systematic manner. In its recommendations, the Commission urged the Government to take the necessary steps to ensure:

(1)   that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention;

(2)   that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and

(3)   that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced.

The Commission of Inquiry emphasized that, besides amending the legislation, concrete action needed to be taken immediately to bring an end to the exaction of forced labour in practice, in particular by the military.

3. In its earlier comments, the Committee of Experts has identified four areas in which measures should be taken by the Government to achieve the recommendations of the Commission of Inquiry. In particular, the Committee indicated the following measures:

–           issuing specific and concrete instructions to the civilian and military authorities;

–           ensuring that the prohibition of forced labour is given wide publicity;

–           providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and

–           ensuring the enforcement of the prohibition of forced labour.

Developments since the Committee’s previous observation

4. There have been a number of discussions and conclusions by ILO bodies, as well as further documentation received by the ILO, which has been considered by the Committee. In particular, the Committee notes the following information:

–           the discussions and conclusions of the Conference Committee on the Application of Standards during the 97th Session of the International Labour Conference in June 2008;

–           the documents submitted to the Governing Body at its 301st and 303rd Sessions (March and November 2008), as well as the discussions and conclusions of the Governing Body during those sessions;

–           the comments made by the International Trade Union Confederation (ITUC) in a communication received in September 2008 together with the detailed appendices of more than 600 pages; and

–           the reports of the Government of Myanmar received on 4 and 20 March, 2 and 19 June, 26 September and 31 October 2008.

The Supplementary Understanding of 26 February 2007 – extension of the complaints mechanism

5. In its previous observation, the Committee discussed the significance of the Supplementary Understanding (SU) of 26 February 2007, which supplemented the earlier Understanding of 19 March 2002 concerning the appointment of an ILO Liaison Officer in Myanmar, and the role of the Liaison Officer in its implementation, as an important new development and a subject of major discussion in ILO bodies. As the Committee previously noted, the SU provides for a new complaints mechanism to be established and put into operation, and has as its prime object “to formally offer the possibility to victims of forced labour to channel their complaints through the services of the Liaison Officer to the competent authorities with a view to seeking remedies available under the relevant legislation”. The Committee notes that the complaints mechanism was extended on 26 February 2008 on a trial basis for one year, until 25 February 2009 (ILC, 97th Session, Provisional Record No. 19, Part 3, Doc. D.5). The Committee further discusses the SU below, in the context of its comments on the other documentation, discussions and conclusions regarding this case.

Discussion and conclusions of the Conference Committee
on the Application of Standards

6. The Committee on the Application of Standards once again discussed this case in a special sitting during the 97th Session of the Conference in June 2008 (ILC, 97th Session, Provisional Record No. 19, Part 3). The Conference Committee observed that, although certain steps had been taken in the application of the SU, “much more needed to be done with commitment and urgency”. The Conference Committee expressed its concern that awareness of the existence of the complaints mechanism under the SU “remained very low”, and it urged the Government to give early approval to the translation, in all local languages, of an easily understandable brochure, for wide public distribution, explaining the law and the procedure for lodging a complaint under the SU. The Conference Committee noted that, although the complaints mechanism continued to operate, penalties were not being imposed under the Penal Code, and no criminal convictions of members of the armed forces had taken place. The Conference Committee also emphasized that it was critical that the ILO Liaison Officer had sufficient resources available to undertake his responsibilities, and it underlined the urgent need for the Government to accept a strengthened network of facilitators to deal with complaints from all over the country. The Conference Committee also noted with concern the reported cases of retaliation and harassment against complainants and volunteer facilitators who cooperated with the Liaison Officer, and it called on the Government to ensure that all retaliation and harassment, based on any legal or other pretext, cease with immediate effect and that the perpetrators be punished with the full force of the law.

Discussions in the Governing Body

7. The Committee notes from the report submitted to the 303rd Session of the Governing Body in November 2008 (GB.303/8/2), regarding the progress of the SU complaints mechanism that, as of 6 November 2008, the Liaison Officer had received 121 complaints (GB.303/8/2, paragraph 3). Of those complaints, 70 had been formally submitted for investigation and appropriate action to the Government Working Group on Forced Labour. Of the cases submitted, 50 had been responded to in a manner considered satisfactory and were subsequently closed, while 20 cases were either still awaiting government response or remained open while the process continued. Thirty-nine of the cases submitted involved individual complaints of under-age recruitment into the military (GB.303/8/2, paragraph 3).

8. The Committee notes in the same report to the Governing Body the indications of the Liaison Officer that it was evident that awareness levels among a large majority of the population regarding their right and possibility to complain were very low; that this low level of awareness together with the physical difficulties of actually lodging a complaint meant that the complaints facility currently did not reach out significantly beyond Yangon and neighbouring divisions (paragraph 9); that “extensive negotiations” were continuing to take place on the translation of the SU and the original Understanding of 2002 and final approval had yet to be granted (paragraph 8); and that the Government had yet to consider or approve the text of a simply worded brochure to be translated into local languages, for wide public distribution, explaining the law and the procedure for lodging a complaint under the SU (paragraph 9).

9. In its conclusions (GB.303/8), the Governing Body, inter alia, stressed the urgency of giving full effect to the recommendations of the Commission of Inquiry and to the subsequent decisions of the International Labour Conference (paragraph 1). While recognizing a certain degree of cooperation to make the SU complaints mechanism function, it expressed its continued concern about the slow pace of progress and the urgent need for much more to be done (paragraph 2). The Governing Body underlined the urgent need to raise the awareness of military and civil authorities, as well as the general public, concerning the legislation prohibiting forced labour and the rights contained in the SU. It also pointed out that those guilty of exacting forced labour, including under-age recruitment into the military, must be prosecuted and meaningfully punished, and victims must be entitled to reparation (paragraph 3). It emphasized the need for the Liaison Officer to be able to carry out his functions effectively throughout the country, and for public access to the ILO Liaison Office to be unhindered and free from the fear of reprisals (paragraph 4). Finally, the Governing Body called for an end to the harassment and detention of persons exercising their rights under the SU (paragraph 5).

Communication received from the International Trade
Union Confederation

10. The Committee notes the comments made by the ITUC in its communication received in September 2008. Appended to this communication were 49 documents, amounting to more than 600 pages, containing extensive and detailed documentation referring to the persistence of widespread forced labour practices by civil and military authorities. In many cases, the documentation refers to specific dates, detailed locations and circumstances, and specific civil bodies, military units and individual officials. It includes allegations of government-imposed compulsory labour taking place in all but one of the 14 states and divisions of the country. Specific incidents referred to involve allegations of a wide variety of types of work and services requisitioned by the authorities, including work directly related to the military or militia groups (portering, construction and maintenance of military camps, other tasks for the benefit of the military such as human minesweeping and sentry/security duty, and forced recruitment of children and of prisoners upon completion of their sentences), as well as work of a more general nature, including work in agriculture (such as forced cultivation of castor oil nuts), construction and maintenance of roads, bridges, and dams, and other infrastructure work.

11. The ITUC documentation includes translated copies of 59 written orders from military and other authorities to village authorities in Karen and Chin States, containing a range of demands, entailing in most cases a requisition for compulsory (and uncompensated) labour. The information also includes reports of allegations that persons turning to the ILO Liaison Office to file complaints of forced labour often face retaliation and harassment. One such case involved 20 villagers from Pwint Phyu Township in the Magwe Division who, after filing a complaint of forced labour with the ILO, were questioned five times within one month by local authorities. Another case involved 70 residents from Arakan State, who were questioned by officers of the Military Affairs Security Department of the Labour Ministry after submitting a forced labour complaint to the ILO and were forced to sign a document stating they had been coerced into filing their petition. The ITUC communication also refers to information alleging that forced labour has been exacted by military and local authorities in the Irrawaddy Delta region for reconstruction work in the wake of cyclone Nargis in May 2008. It refers, for example, to allegations that: at the Maubin camp for displaced people, 1,500 men and women were forced to work in quarries; that in Ngabyama village in Southern Bogale Township, authorities forced survivors to cut trees and reconstruct roads; and that in Bogalay soldiers were imposing forced labour on local villagers. The documentation also includes testimonies alleging the forced appropriation of money by military commanders from villages in SPDC-controlled areas, allegedly as “donations” being collected for distribution to survivors of the cyclone. A copy of the ITUC’s communication and its annexes was transmitted to the Government on 22 September 2008 for such comments as it may have wished to provide.

The Government’s reports

12. The Committee notes the Government’s reports, referred to in paragraph 4 above. It is grateful for the very lengthy report received on 31 October 2008, which is in large part a compilation of information the Government previously supplied, but which also includes a lengthy summary of the history of developments in this case from the Government’s point of view with an emphasis on its history of cooperation with the International Labour Office, as well as several pages of updated information concerning measures which, according to the Government, are being taken to implement the June 2008 conclusions of the Conference Committee, as well as this Committee’s observations. The Committee notes, however, that in its most recent reports, the Government did not respond in detail to the numerous specific allegations contained in the communication from the ITUC referred to above, other than to provide information about the status of several court cases involving the criminal prosecution and punishment of persons who were acting as volunteer facilitators for the SU complaints mechanism or who were labour activists with links to the ILO or engaged in associational activities aimed at promoting labour rights. These cases have also been matters of particular concern to ILO supervisory bodies. The Committee notes that the information about these cases contained in the Government’s most recent report is a repetition of the information included in the reports received on and before 19 June 2008. The Committee notes the updated information on these cases in the report of the Liaison Officer of 7 November 2008 submitted to the 303rd Session of the Governing Body (GB.303/8/2). The Committee urges the Government to respond in detail in its next report to the numerous specific allegations of continued, widespread imposition of forced or compulsory labour by military and civil authorities throughout the country, which are documented in the recent communication from the ITUC.

Assessment of the situation

Issuing specific and concrete instructions to
the civilian and military authorities

13. The Committee notes initially that in its latest reports the Government has given no indication that it has taken measures to formally repeal the relevant provisions of the Village Act and the Towns Act. With regard to Order No. 1/99 as supplemented by the Order of 27 October 2000, which prohibit forced labour, the Government repeats its reference to instructions it states had previously been issued, yet once again it has not supplied details as to the content of those instructions. The Committee notes the reference to a lecture to deputy township judges on 18 February 2008, delivered jointly at an “On-Job Training Course No. 18” by the Director-General of the Department of Labour and the ILO Liaison Officer, which was aimed at raising those participants’ awareness “about forced labour broadly” and to enable them to “make right decisions”. The Committee also notes that the report of the Liaison Officer submitted to the Conference Committee in June 2008 referred to the first of two five-day training for trainers’ courses, led by the Assistant to the Liaison Officer, in association with UNICEF and the ICRC, which it states had been successfully completed. Its 37 participants were officers and non-commissioned officers of the Recruitment Regiment, the Basic Training Camps, and personnel of the Social Welfare Department, and the second programme of this kind was scheduled for the last week of June and was to be followed by the participants leading multiplier training courses around the country (ILC, 97th Session, Provisional Record No. 19, Part 3, Doc. D.5, paragraph 7). The Committee notes the information in the Government’s reports received on 20 March and 26 September 2008, on activities undertaken by the Committee for the Prevention of Military Recruitment of Under-age Children. This information also refers to a plan for “multiplier courses” on measures for the prevention of child recruitment into the military to be given to military officers and lower ranking trainees at a number of military training centres during 2008. It indicates, inter alia, that in June 2008 representatives of the Committee for the Prevention of Military Recruitment of Under-age Children and the Ministry of Defense issued “guidance” to assistant judge advocates-general and to department heads of division and regional commands and military training schools, which, in turn, was intended to support “legal education” lectures on the prevention of recruitment of children into the military that were to be given to military officers and lower ranking military personnel at a number of regiments and units. The Committee notes that in its latest reports the Government provided no further information about the plans for multiplier courses or legal education lectures referred to earlier.

14. The Committee considers that steps taken to issue instructions to civilian and military authorities on the prohibition of forced and compulsory labour, such as those referred to above, are vital and need to be intensified. However, given the continued dearth of information regarding such measures, including the detailed content of materials referred to, the Committee remains unable to ascertain that clear instructions have been effectively conveyed to all civil authorities and military units, and that bona fide effect has been given to the orders. The Government has provided no information that would support an observation that, in actual practice, recourse to forced or compulsory labour by the authorities, and in particular the military, has declined on account of instructions regarding the prohibition of forced labour, which the Government indicates has been conveyed to them. The Committee stresses that in order for the Government to eradicate forced labour, the activities referred to above are vital and need to take place on a larger scale and in a more systematic way. The Committee requests the Government to report in greater detail on these activities, including the full content of the materials and curricula utilized, as well as information about their effectiveness in bringing about a decline, in actual practice, in the imposition of forced or compulsory labour.

15. In its previous observation the Committee expressed the hope that the Government would also bring constitutional clarity to the prohibition of forced labour. In its latest report, the Government states that application of the Convention has “been included in the New State Constitution”, which was approved in a constitutional referendum in May 2008 and is due to take effect in 2010, and it refers to section 359 (paragraph 15 of Chapter VIII – “Citizenship, Fundamental Rights and Duties of Citizens”) of that instrument, which states: “The State prohibits any form of forced labour except hard labour as a punishment for crime duly convicted and duties assigned thereupon by the State in accord with the law in the interests of the people.” The Committee, referring also to paragraph 42 of its General Survey of 2007 on the eradication of forced labour, recalls that, for purposes of the Convention, certain forms of compulsory work or service, which would otherwise fall under the general definition of “forced or compulsory labour”, are expressly excluded from its scope by Article 2(2) of the Convention, and that these exceptions are subject to the observance of certain conditions which define their limits. The Committee notes with regret that the exemption from the prohibition of forced labour in the new Constitution for “duties assigned thereupon by the State in accord with the law in the interests of the people” encompasses permissible forms of forced labour that exceed the scope of the specifically defined exceptions in Article 2(2). The Committee also expresses deep concern about the fact that the Government not only failed to repeal legislative texts identified by the Commission of Inquiry and this Committee, but also included in the text of the Constitution a provision which may be interpreted in such a way as to allow a generalized exaction of forced labour from the population. Moreover, as the Committee pointed out in paragraph 67 of its General Survey referred to above, even those constitutional provisions which expressly prohibit forced or compulsory labour may become inoperative where forced or compulsory labour is imposed by legislation itself. The Committee therefore trusts that the Government will at long last take the necessary steps to amend or repeal the relevant legislative texts, in particular the Village Act and the Towns Act, and that it will also amend paragraph 15 of Chapter VIII of the new Constitution, in order to bring its law into conformity with the Convention.

Ensuring that the prohibition of forced labour
is given wide publicity

16. In relation to ensuring that the prohibition of forced labour is given wide publicity, the Committee notes the indication from the report of the Liaison Officer dated 7 November 2008, which was submitted to the Governing Body at its 303rd Session, that since March 2008, the Liaison Officer had undertaken two joint awareness-raising missions with senior Department of Labour officials (GB.303/8/2, paragraph 6). The Government appears to refer in its report received on 31 October 2008 to the same activities, indicating that joint field visits were planned by the Director General of the Department of Labour and the ILO Liaison Officer to Myitkyinar and Monywa in late October 2008 to carry out awareness-raising workshops. The Committee reiterates its view that such activities are critical in helping to ensure that the prohibition of forced labour is widely known and applied in practice, and they should continue and be expanded. It notes the indication of the Liaison Officer in his report to the Governing Body (GB.303/8/2), that there still had been no response to repeated calls from ILO supervisory bodies for a widely publicized, high-level statement reconfirming the Government’s commitment to the elimination of forced labour (paragraph 10).

17. In its previous observation the Committee noted that the complaints mechanism of the SU in itself provided an opportunity to the authorities to demonstrate that continued recourse to the practice is illegal and would be punished as a penal offence, as required by the Convention. In that vein, the Committee notes with concern the statements of the Liaison Officer about the continued shortcomings of the SU in his latest report to the Governing Body (GB.303/8/2), which are referred to above in the discussion of the Governing Body proceedings. The Committee hopes that the Government will, without further delay, take measures to intensify and expand the scale and scope of its efforts to give wide publicity to and raise public awareness about the prohibition of forced labour, including the use of the SU complaints mechanism as an important modality of awareness raising, and that in its next report it will provide information about such measures as well as the impact they are having on the enforcement of criminal penalties against perpetrators of forced labour and on the imposition in actual practice of forced or compulsory labour, particularly by the military.

Providing for the budgeting of adequate means for the
replacement of forced or unpaid labour

18. In this regard, the Committee recalls that in its recommendations the Commission of Inquiry stated that: “(A)ction must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required.” The Committee, in its previous observations, has also stressed that budgeting of adequate means for the replacement of forced labour, which tends also to be unpaid, is necessary if recourse to the practice is to end. The Committee notes that, in its latest reports, the Government provides no new information, stating as it has previously that it “provides the budget allotment including labour costs for all the Ministries to implement their respective projects”, and “to confirm that the budgetary allotment for the workers are already allocated to the respective Ministry”. The Committee repeats its earlier request for the Government, in its next report, to provide precise, detailed information about the measures it has taken to budget for adequate means for the replacement of forced or unpaid labour.

Ensuring the enforcement of the prohibition of forced labour

19. With regard to the enforcement of prohibitions of forced labour, the Committee notes the assessment of the Liaison Officer, as reported to the Governing Body in November of 2008, that: “In the main, complaints lodged (under the SU) have been dealt with expeditiously by the Government Working Group” (GB.303/8/2, paragraph 5); and that: “The Government’s response to the complaints mechanism at senior level remains reasonably positive” (GB.303/8/2, paragraph 20). However, in its previous observation the Committee expressed its concern that only one case forwarded by the Liaison Officer to the authorities for investigation and appropriate action had so far resulted in the prosecution of those responsible (Case No. 001, which led to the prosecution of two civilian officials), and there were no indications that, in the cases forwarded which involved allegations against military personnel, any action, criminal or even administrative (other than reprimands), had been taken against any military personnel. The Committee notes that this situation remained largely unchanged in 2008, except for three cases against military personnel, referred to in the report of 7 November 2008 submitted to the 303rd Session of the Governing Body, in which fines (28 days’ and one 14 days’ salary; in one case loss of one year’s seniority) rather than reprimands were imposed (GB.303/8/2, paragraph 7). The Committee notes in the same report the statements of the Liaison Officer that administrative penalties against military personnel continue to be proportionately lighter than those imposed on their civilian counterparts, and that, during the period following the submission of previous reports to the ILO supervisory bodies, no further prosecutions of alleged perpetrators under either the Penal Code or military regulations, resulting in imprisonment, had taken place (GB.303/8/2, paragraph 7).

20. The Government has in its latest reports provided no new information about any prosecutions against perpetrators of forced labour being pursued in the court system outside the framework of the SU complaints mechanism. The Committee notes that, in its report received on 31 October 2008, the Government makes reference, as in previous years, to a mechanism that has been put in place for the public to register complaints directly with law enforcement authorities, and it also refers, as it has previously, to an appendix containing a table of cases with notations indicating that in 2003 and 2004 ten cases involving complaints of forced labour were filed directly in the Myanmar courts, several of which resulted in convictions and the imposition in January and February of 2005 of prison sentences under section 374 of the Penal Code. The Committee previously noted these cases in its observation published in its 2005 report. The Committee notes that three of the cases were dismissed, and in the remaining cases the persons convicted and sentenced were all civil administration officials, despite the fact that at least two of the cases involved allegations against military personnel.

21. The Committee emphasizes once again that the illegal exaction of forced labour must be punished as a penal offence, rather than treated as an administrative issue, and the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced, in conformity with Article 25 of the Convention. As emphasized by the Commission of Inquiry, this requires thorough investigation, prosecution and adequate punishment of those found guilty, including cases involving military personnel.

Concluding remarks

22. The Committee fully endorses the conclusions concerning Myanmar of the Governing Body and the general evaluation of the forced labour situation by the Liaison Officer. In the light of these conclusions and evaluation, the Committee continues to believe that the only way that genuine and lasting progress in the elimination of forced labour can be made is for the Myanmar authorities to demonstrate unambiguously their commitment to achieving that goal. This requires, beyond the agreement of the SU, that the authorities redouble their efforts to establish the necessary conditions for the successful functioning of the complaint mechanism, and that they take without further delay the long-overdue steps to repeal the relevant provisions of domestic legislation and adopt the appropriate legislative and regulatory framework to give effect to the recommendations of the Commission of Inquiry. The Committee trusts that the Government will demonstrate its commitment to rectify the violations of the Convention identified by the Commission of Inquiry, by implementing the very explicit practical requests addressed by the Committee to the Government, and that all the required steps will be taken to achieve compliance with the Convention, both in law and in practice, so that the most serious and long-standing problem of forced labour will be finally resolved.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Historical background

1. In previous comments the Committee has drawn attention to gross breaches of the Convention by the Government of Myanmar and the failure by the Government to implement the recommendations of the Commission of Inquiry, appointed by the Governing Body in March 1997.

2. The Commission of Inquiry, appointed in 1997 under article 26 of the Constitution, concluded that the Convention was violated in national law and in practice in a widespread and systematic manner, and made the following recommendations:

(1)   that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention;

(2)   that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and

(3)   that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced.

The Commission of Inquiry emphasized that, besides amending the legislation, concrete action needed to be taken immediately to bring an end to the exaction of forced labour in practice, in particular by the military.

3. The continued failure of the Government to comply with those recommendations and the observations of the Committee of Experts as well as other matters arising from the discussion in the other bodies of the ILO, led to the unprecedented exercise of article 33 of the Constitution by the Governing Body at its 277th Session in March 2000, followed by the adoption of a resolution by the Conference at its June 2000 session. The detailed history of this extremely serious case has been set out at length in previous observations of this Committee in recent years.

4. Each of the ILO bodies, in discussing this case, had focused attention on the recommendations of the Commission of Inquiry. The Committee of Experts has in its previous observations identified four areas in which measures should be taken by the Government to achieve those recommendations. Specifically, the Committee indicated the following measures:

n      issuing specific and concrete instructions to the civilian and military authorities;

n      ensuring that the prohibition of forced labour is given wide publicity;

n      providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and

n      ensuring the enforcement of the prohibition of forced labour.

Developments since the Committee’s last observation

5. There has been a number of discussions and conclusions by ILO bodies and also further documentation received which the Committee has considered in the course of making this observation. In particular the Committee notes:

n      the discussions and conclusions of the Conference Committee on the Application of Standards during the 96th Session of the International Labour Conference in June 2007;

n      the documents submitted to the Governing Body at its 298th and 300th Sessions (March and November 2007) as well as the discussions and conclusions of the Governing Body during the sessions;

n      the comments made by the International Trade Union Confederation (ITUC) in a communication received on 31 August 2007 together with the detailed appendices of some 740 pages;

n      the reports of the Government of Myanmar received on 17 and 20 August, 10 September and 12 and 23 October as well as 3 December 2007; and

n      the Supplementary Understanding (SU) of 26 February 2007 to the earlier Understanding of 19 March 2003 concerning the appointment of an ILO Liaison Officer in Myanmar.

The Supplementary Understanding of 26 February 2007

6. The Committee notes at this point that the SU is a very important development and its significance is discussed in greater detail towards the end of this observation. It is important for the SU to be viewed in the context of the other documentation, discussions and conclusions referred to above.

7. The SU concerns the appointment and role of an ILO Liaison Officer in Myanmar, and was concluded after long negotiations between the ILO and the Government of Myanmar. The SU provides for a new complaints mechanism to be established and put into operation, and has as its prime object “to formally offer the possibility to victims of forced labour to channel their complaints through the services of the Liaison Officer to the competent authorities with a view to seeking remedies available under the relevant legislation”. The mechanism was to be implemented on a trial basis over a period of 12 months and could thereafter be extended by mutual agreement (GB.298/5/1, appendix).

8. The role of the Liaison Officer in the context of the SU and the impact of his work in the circumstances in which he was required to perform it in the country, was a major subject of later discussion in ILO bodies.

Discussion and conclusions of the Conference Committee
on the Application of Standards

9. The conclusion of the Conference Committee during the 96th Session in June 2007, was that, whilst the complaints mechanism set up under the SU was continuing to function, it had to be assessed against the ultimate goal of eliminating forced labour.

10. In this connection, the Committee notes that the Committee on the Application of Standards in its conclusions in June 2007 (ILC, 96th Session, Provisional Record No. 22, Part 3) “observed that the mechanism had to be assessed against the ultimate goal of eliminating forced labour, and it remained to be seen what the impact would be”; and that the recent documentation submitted to the Governing Body stated that “it is both physically and financially very difficult for victims of forced labour or their relatives to lodge a complaint if they live outside Yangon” noting that “informal networks have been developed” which “although valuable … do not necessarily extend to all parts of the country” (GB.300/8, paragraph 9). The Committee also notes from the documentation that “regarding the mechanism set up by the Supplementary Understanding, it is not possible today to say to what extent it is fully functional after the civil unrest and its suppression, and thus to what extent experiences from it can be built upon” (GB.300/8, Add, paragraph 9).

Discussions in the Governing Body

11. The Committee notes that the reports to the Governing Body at its 300th Session in November 2007 regarding the progress of the complaints mechanism indicated that as of 7 November 2007, the Liaison Officer had received 56 complaints (GB.300/8 (Add.), paragraph 3). Of those complaints, 19 were assessed as falling outside the mandate of the Liaison Officer and 24 were formally submitted for investigation and appropriate action to the Deputy Minister of Labour in his capacity as Chairman of the Government Working Group on Forced Labour. Four complaints were closed after being assessed as having an insufficient basis to proceed, and nine complaints were still being processed or could not proceed until further information was received from the complainants (GB. 300/8, paragraph 5 and GB.300/8 (Add.), paragraph 5).

12. In addition, the Governing Body called upon the Government to ensure that the mechanism provided by the SU remained fully functional with no further detention or harassment of complainants, facilitators or others, and that it should be fully applied to the military authorities. It considered that full attention should also be given to preventing the recruitment of child soldiers (paragraph 5). Importantly, the Governing Body also called for the putting into place of an appropriate network towards ensuring that the nationwide application of the SU, including in the combat zones, and to ensure that forced labour victims are able to easily access the complaints mechanism (paragraph 6).

Communication received from the International Trade Union Confederation

13. The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication received on 31 August 2007. Appended to this communication were 45 documents, amounting to more than 740 pages, containing extensive and detailed documentation referring to forced labour practices on the part of civil and military authorities. In many cases, the documentation refers to specific dates, detailed locations and circumstances, and specific civil bodies, military units and individual officials. The documentation covers a broad area of the country (including many parts of Chin, Kayah, Kayin, southern Mon, northern Rakhine and Shan States, and of Ayeyarwady, Bago, Mandalay and Tanintharyi Divisions) during the period from the second half of 2006 through the first half of 2007. The incidents referred to involve the alleged requisition of labour for the full range of tasks identified by the Commission of Inquiry:

–      portering for the military (or other military/paramilitary groups, for military campaigns or regular patrols);

–      construction or repair of military camps/facilities;

–      other support for camps (guides, messengers, cooks, cleaners, etc.);

–      income-generation by individuals or groups (including work in army-owned agricultural and industrial projects);

–      various infrastructure projects; and

–      cleaning/beautification of rural or urban areas.

14. The documentation includes copies of 145 written orders apparently from military and other authorities to villages in Kayin State, containing a range of demands entailing in most cases a requirement for (uncompensated) labour. It also includes photographs purporting to show people in Mon State being forced to work on military development projects, as detailed in an accompanying report. It further includes a video in which five men state that they were forced to work for the Myanmar army since April 2007 as porters, sentries, carrying out construction projects, building fences and doing various tasks in army camps, as well as being forced to provide ox carts and tractors to the army. A copy of the ITUC’s communication and its annexes was transmitted to the Government for such comments as it may wish to provide.

The Government reports

15. The Committee notes the Government’s reports received on 17 and 20 August, 10 September, 12 and 23 October, and 3 December 2007. These reports make reference to information contained in a communication from the ITUC to the Committee dated 31 August 2006 that was forwarded to the Government and to which reference was made in the Committee’s previous observation. The Government has not responded in detail to the information contained in the ITUC’s communication, except to state its view that “most of the issues raised by the [ITUC] are totally groundless” and to note that such cases “would be covered by the mechanism to deal with the forced labour complaints under the Supplementary Understanding” agreed between the ILO and Myanmar on 26 February 2007.

16. The Committee must point out that agreement on the Supplementary Understanding and the establishment of the complaint mechanism provided for thereunder, in no way relieves the Government of its obligation under the Convention to suppress the use of forced labour. Rather, they are a means to assist the Government in meeting this obligation through the full implementation of the recommendations of the Commission of Inquiry.

17. The Committee requests the Government to respond in detail in its next report to the numerous specific allegations contained in the most recent communication from the ITUC as well as that of the previous year.

Assessment of the situation

Issuing specific and concrete instructions to the civilian and military authorities

18. The Committee notes that in its report the Government has again referred to a series of letters, directives, telegrams and rules issued by various civil and military authorities relating to the Orders prohibiting forced labour. However, as noted in its previous observation, since the Government has supplied minimal details of the content of these instructions, and given that all the indications suggest that the imposition of forced labour continues to be widespread, the Committee is yet to be convinced that clear instructions have been effectively conveyed to all civil authorities and military units. The Committee reinforces the need for appropriate publicity to be given to these Orders.

19. The Committee must also emphasize that, even if the Orders provide a statutory basis in practice for ensuring compliance with the Convention, this still falls far short of the formal repeal of the provisions of the relevant legislation requested by the Commission of Inquiry. The Committee therefore hopes that the Government will take the necessary steps to amend these provisions as soon as possible, something it has been promising to do for 40 years. The Committee also hopes that the Government will take advantage of the opportunity to bring constitutional clarity to the prohibition of forced labour.

Ensuring that the prohibition of forced labour is given wide publicity

20. In relation to ensuring that the prohibition of forced labour is given wide publicity, the Committee refers to its comment above. The Committee also notes the agreement on 26 February 2007 of a Supplementary Understanding between the ILO and the Government, which is a welcome development. The mechanism that it establishes to deal with complaints of forced labour provides an opportunity to the authorities to demonstrate that continued recourse to the practice is illegal and will be punished as a penal offence, as required by the Convention. The fact that Order No. 1/99 as supplemented by the Order of 27 October 2000, has been used as a legal basis for criminal convictions of government officials for exacting forced labour, is in line with the Committee’s conclusion in its observation published in 2001, that these Orders “could provide a statutory basis for ensuring compliance with the Convention in practice, if given bona fide effect not only by the local authorities empowered to requisition labour under the Village and Towns Acts, but also by civilian and military officers entitled to call on the assistance of local authorities under the Acts”.

21. The Committee also notes that some publicity has been given to the signing of the Supplementary Understanding and to the subsequent prosecutions of two officials for imposing forced labour (a press release on 26 February 2007; a press conference by the Director-General of the Department of Labour on 26 March 2007; and an article on the prosecutions in the New Light of Myanmar on 31 March 2007). The Committee also notes from the report submitted to the 300th Session of the Governing Body that the Government “has undertaken widespread training for administrators to raise awareness of the law and to explain the Supplementary Understanding procedure”, that “a further round of such training on a joint ILO/Ministry of Labour basis has been discussed” and that “the Government has drafted a booklet entitled Eradication of forced labour – Educational Paper No. 1”, consultations on the content and format of which are continuing prior to its dissemination throughout the administration (GB.300/8, paragraph 8).

22. The Committee considers that such publicity is vital in ensuring that the prohibition of forced labour is widely known and applied in practice, and should continue and be expanded. The Committee shares the view of the Governing Body that “an unambiguous public statement that all forms of forced labour are prohibited throughout the country and will be duly punished” from the Government of Myanmar “at the highest level” (GB.300/8, conclusions) would be extremely valuable.

Providing for the budgeting of adequate means for the
replacement of forced or unpaid labour

23. In this regard, the Committee stresses the importance of its request, made regularly in previous observations and underlined in the recent conclusions of the Conference Committee on the Application of Standards, that specific instructions be issued to all military units making clear the prohibition of forced labour and the fact that this will be strictly enforced. This requires the budgeting of adequate means for the replacement of forced labour, which tends also to be unpaid, are necessary if recourse to the practice is to end.

24. Similarly, the Committee notes that the Government’s report of 17 August 2007 states that it provides a budget allotment including labour costs “for all Ministries to implement their respective projects” and that a signed statement from the Ministry of Construction indicating the sum in question is provided in an annex to the report. Again, the Committee fails to understand, if adequate resources really are provided to civil and military authorities, why it is that recourse to unpaid forced labour apparently remains widespread, particularly by the military and by local civil administrations. The Committee repeats its earlier request that the Government, in its next report, provide detailed information about the measures taken to budget for adequate means for the replacement of forced or unpaid labour.

Ensuring the enforcement of the prohibition of forced labour

25. The Committee is bound to express its concern that, as stated in the reports submitted by the Office to the Governing Body referred to above, and in the information provided by the Government, that out of 24 complaints (as of 7 November) forwarded by the Liaison Officer to the authorities for investigation and appropriate action, only one case has so far resulted in the prosecution of those responsible (Case No. 001, which led to the prosecution of two civilian officials). A number of other cases have led to administrative action against civilian officials (for example, dismissals or warnings for the officials concerned). Although seven of the cases forwarded to the authorities by the Liaison Officer involved allegations against military personnel (for forced recruitment of children into the army, and imposition of forced labour against villagers), there are so far no indications that any action, criminal or even administrative, has been taken against any military personnel. The Committee notes the recent information provided by the Government on 3 December 2007 that it has taken concrete measures to prevent recruitment of children into the military by setting up a central committee and working committees, with follow-up workshops.

26. The Committee notes the information from the Liaison Officer that the Government Working Group “appears to be more successful in achieving prompt and constructive outcomes in cases associated with civil administrations. It is more difficult to obtain timely and appropriate responses on complaints involving the military” (GB.300/8, paragraph 6). The Committee indicates that this is all the more concerning, as it has previously observed that forced labour is a particular problem in areas of the country with a heavy presence of the army.

27. The Committee reemphasizes that the illegal exaction of forced labour must continue to be punished as a penal offence, rather than an administrative issue, as required by Art. 25 of the Convention. While taking account of the measures to be taken by the Government regarding recruitment of children, it is also essential that the legal penalties be strictly enforced in cases involving military personnel, including in cases of forced recruitment of children into the armed forces.

Conclusion

28. The Committee considers that there are obvious constraints and limits on the contribution that the complaint mechanism can make to the eradication of forced labour. This is due to structural limitations on the mechanism and is magnified by the uncertainties of the present situation in the country. The mechanism can certainly provide welcome relief to individual victims by offering an objective and safe channel for complaints to be raised and addressed, and beyond this it can send a powerful signal to potential perpetrators that they are not free to act with impunity. However, the mechanism is not obviously well-suited to dealing with some of the more extreme and widespread violations in remote areas, of the kind referred to in the documentation submitted by the ITUC.

29. More fundamentally, the complaint mechanism, whilst valuable, does not address the root causes of the forced labour problem that were identified by the Commission of Inquiry and by the High-level Team (see GB.282/4). Namely, it does not address the basic governance relationships prevailing in the country, the role of the army and its self-reliance policy, and the absence of freedom of association and, more generally, freedom of assembly, which recent events have served to graphically illustrate. The prevailing situation in Myanmar, ten years after the establishment of the Commission of Inquiry, seems to provide sad support to the perception that addressing these root causes remains indispensable.

30. In the light of this, the Committee believes that the only way that genuine and lasting progress in the elimination of forced labour can be made is for the Myanmar authorities to demonstrate unambiguously their commitment to achieving that goal. This requires, beyond the agreement of the Supplementary Understanding, that the authorities establish the necessary conditions for the successful functioning of the complaint mechanism, and that they take the long overdue steps to repeal the relevant provisions of domestic legislation and adopt the appropriate legislative and regulatory framework to give effect to the recommendations of the Commission of Inquiry. The Committee remains hopeful that, having agreed the Supplementary Understanding, the Government will finally take the required steps to achieve compliance with the Convention in law and in practice and resolve one of the most serious and long-standing cases that this Committee has ever had to address.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

I.     Historical background

1. The Committee, as it noted in its previous observation, has been commenting on this extremely serious case since its first observation more than 30 years ago. The grave situation in Myanmar has also been the subject of overwhelming criticism and condemnation in the Conference Committee on the Application of Standards of the International Labour Conference on ten occasions between 1992 and 2006, in the International Labour Conference at its 88th Session in June 2000 and again at its 95th Session in 2006, and in the Governing Body, by governments and social partners alike. The history is set out in detail in the previous observations of this Committee in more recent years, particularly since 1999.

2. The major focus of the criticisms by each of the ILO bodies relates to the outcome of a Commission of Inquiry appointed by the Governing Body in March 1997 following a complaint submitted in June 1996 under article 26 of the Constitution. The Commission of Inquiry concluded that the Convention was violated in national law and in practice in a widespread and systematic manner, and it made the following recommendations:

(1)   that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention;

(2)   that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and

(3)   that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced.

The Commission of Inquiry emphasized that, besides amending the legislation, concrete action needed to be taken immediately to bring an end to the exaction of forced labour in practice, in particular by the military.

3. In its previous observations the Committee of Experts identified four areas in which measures should be taken by the Government to achieve this outcome:

–           issuing specific and concrete instructions to the civilian and military authorities;

–           ensuring that the prohibition of forced labour is given wide publicity;

–           providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and

–           ensuring the enforcement of the prohibition of forced labour.

4. The flagrant continuing breaches of the Convention by the Government and the failure to comply with the recommendations of the Commission of Inquiry and the observations of the Committee of Experts and other matters arising from the discussion in the other bodies of the ILO, led to the unprecedented exercise of article 33 of the Constitution by the Governing Body at its 277th Session in March 2000, followed by the adoption of a resolution by the Conference at its June 2000 session.

II.    Developments since the Committee’s last observation

5. The Committee notes the documents submitted to the Governing Body at its 295th and 297th Sessions (March and November 2006) on developments concerning the question of the observance by the Government of Myanmar of Convention No. 29, as well as the discussions and conclusions of the Governing Body during these sessions, and of those of the Conference Committee on the Application of Standards and the Conference Selection Committee during the 95th Session of the International Labour Conference in June 2006.

6. The Committee also notes the Government’s report, received in communications on 29 September and 23 October 2006, and the comments by the then International Confederation of Free Trade Unions (ICFTU) (now the International Trade Union Confederation (ITUC)), contained in a communication, dated 31 August 2006 and received on 5 September 2006, which was accompanied by a number of attached reports that document the persistence in 2006 of the use of forced labour in Myanmar. In summarizing the material forwarded, the ICFTU reports that in 2006:

… the overall picture continues to be very grim. This report includes evidence of government-imposed forced labour in nearly every State and Division of the country, ranging from forced portering, forced labour in “development projects”, construction or maintenance of infrastructure or army camps, forced patrolling and sentry duty, clearing or beautification of designated areas, child labour including the forced conscription of child soldiers, sexual slavery, human minesweeping, and confiscation of land, crops, cattle and/or money.

The communication of the ICFTU was forwarded to the Government by letter dated 31 August 2006 together with the indication that, in accordance with established practice, the communication of the ICFTU would be brought to the attention of the Committee together with any comments that the Government would wish to make in response. The Government has not responded in its report to this very troubling information, and the Committee requests the Government to do so in its next report.

7. In its previous observation, the Committee noted comments from the ICFTU contained in a communication dated 31 August 2005 received on 12 September 2005, which was accompanied by some 1,100 pages of documents from many sources, reporting on the persistence in 2005 of the use of forced labour in Myanmar. The Committee requested the Government to respond to this information in its report submitted in 2006. The Committee notes that the latest report received from the Government does not contain a response as requested, and the Committee therefore once again asks the Government, in its next report, to respond to this earlier information, in addition to the communication referred to above from the ICFTU in 2006.

III.   Addressing the recommendations of the Commission of Inquiry

8. As noted above, the Committee has in its previous observation set out the matters that the Government needs to address as a consequence of the Commission of Inquiry and its findings and recommendations. The Committee observes that these matters remain unaddressed, and that it is therefore bound to repeat them in detail.

(1)  Ensuring the enforcement of the prohibition of forced labour – monitoring and complaints machinery

9. The Committee has previously noted that measures taken by the Government to ensure the enforcement of the prohibition of forced labour included the establishment of seven field observation teams empowered to carry out investigations into allegations of the use of forced labour, the findings of which were submitted to an organ called the Convention No. 29 Implementation Committee. It also previously noted that on 1 March 2005, the Office of the Commander-in-Chief (army) established a “focal point” in the army headed by a Deputy Adjutant-General and assisted by seven grade 1 staff officers, which the Government indicated to the Liaison Officer a.i. was intended “to facilitate cooperation with the ILO on cases of forced labour concerning the military” (GB.292/7/2(Add.), paragraph 3). In its previous observation the Committee, noting reports of the Liaison Officer a.i. and other information, noted with extreme concern that the assessments made by these organs appeared to lack independence and credibility.

10. In its previous observation the Committee also noted with concern that, according to a report submitted for discussion to the 294th Session of the Governing Body in November 2005 (GB.294/6/2), “recent developments have seriously undermined the ability of the Liaison Officer a.i. to perform his functions” (paragraph 7), and that, while he had continued to receive complaints from victims or their representatives concerning ongoing forced labour or forced recruitment, he was unable to refer these cases to the competent authorities as he did in the past, in part because of the Government’s policy of prosecuting victims for allegedly false complaints of forced labour (paragraph 8).

11. The Committee notes the following matters:

–           that, according to a report on recent activities of the Liaison Officer a.i., submitted “for debate and guidance” to the 295th Session of the Governing Body in March 2006, the Liaison Officer a.i. wrote on 7 December 2005 to the designated army focal point for the ILO to request a meeting, and that no response was received to this request (GB.295/7, paragraph 8);

–           that in November 2005 the Government, through the Minister for Labour in Yangon and the Permanent Representative in Geneva, rejected the proposal of the International Labour Office (“Office”) for a complaint mechanism involving a facilitator (GB.295/7, paragraph 15), and that it has since reaffirmed its rejection of that proposal;

–           that the Office subsequently developed two alternative options: one, known as Option-I, entails a proposal to build up the capacity of the Office of the ILO Liaison Officer a.i. and provide sufficient legal guarantees to credibly address the complaints received and sufficient resources and personnel to meet its additional responsibilities (GB.297/8/1, paragraph 16 and Appendix III). The second option, known as Option-II, is a proposal for a “Joint Panel” mechanism, which would involve a panel composed of two members with required credentials appointed by the two sides, and a third person appointed by an unimpeachable institution to arbitrate in cases of possible disagreement, and which would confidentially address complaints submitted by alleged victims and make a prima facie determination of the validity of the complaint;

–           that the Government rejected the proposal of the Office for a Joint Panel mechanism, the so-called Option-II, during discussions between representatives of the Office and the Minister for Labour in Yangon in March 2006 (GB.295/7, paragraph 22), and it reaffirmed its rejection in the Conference Committee on the Application of Standards in June 2006;

–           that the Government representative announced in the Special Sitting of the Conference Committee in June 2006, the willingness of the Government to put into place, “on an experimental basis”, a six-month moratorium on the continued implementation of its policy of prosecuting complainants who lodge “false allegations” of forced labour. In addition, that during the period of the moratorium the Government would cooperate with the Office in working out a mechanism under the so-called Option-I, the proposal for a system built upon the framework of the existing Office of the Liaison Officer a.i.;

–           that the Conference Committee in its conclusions of June 2006 indicated that the proposal of a moratorium was “late and limited”, and that “words had to be urgently confirmed and completed by deeds”, including by the cessation of prosecutions currently under way, and that the government authorities needed to immediately enter into discussions with the ILO, with a view to establishing as soon as possible a credible mechanism for dealing with complaints of forced labour;

–           that the Conference Selection Committee, to which the Conference referred the matter for a separate examination, indicated that a real test of cooperation from the Government would entail, among other things, steps taken: to immediately enter into discussions with the ILO, with a view to establishing as soon as possible a credible mechanism for dealing with complaints of forced labour. Further, with regard to its moratorium on prosecutions of complainants, the Government should provide further details on how the moratorium would be applied so as to make it clear that anyone lodging a complaint during the moratorium would have immunity from any subsequent action being taken against them; and to demonstrate such that the moratorium would be considered strictly binding (GB.297/8/1, Appendix I);

–           that developments subsequently occurred in three prominent cases of government prosecutions: the release of Su Su Nway on 6 June 2006; the release on 8 July 2006 of Aye Myint from prison after his sentence was conditionally suspended; and the acquittal on 20 September 2006 of the three persons in Aunglan Township (Magway Division) of charges of making false complaints of forced labour, following withdrawal of the case by the authorities. As noted in the report on developments submitted by the Office to the Governing Body “for debate and guidance” during its 297th Session in November 2006 (GB.297/8/1, paragraph 5), the Liaison Officer a.i. reported that to his knowledge these developments resolved all the outstanding cases of prosecution or imprisonment of persons having an ILO connection (GB.297/8/1, paragraph 5);

–           that, during discussions in Yangon in October 2006 between the Minister for Labour and a specially designated working group, on the one hand, and representatives of the International Labour Office, it became clear that the Government was not prepared to accept so-called Option-I, the proposal by the Office for a complaint mechanism that involved strengthening the Office of the ILO Liaison Officer a.i. with adequate resources and staffing. Further, that contrary to previous expressions of willingness to consider Option-I, and notwithstanding a compromise proposal offered by the Office during the discussions in October, the Government signalled that it was willing to accept little more than a continuation of the present functioning of the Office of the ILO Liaison Officer a.i., as that mechanism was originally conceived and structured.

12. The Committee fully concurs with the views expressed by the Governing Body, as well as by the Conference Committee on the Application of Standards and the Conference Selection Committee, that it is imperative that the Government institute an effective complaint mechanism, such as any of the three already proposed by the Office, as a channel for the treatment of complaints that both protects the victims and leads to the prosecution, punishment and imposition of sanctions against those responsible for the exaction of forced labour, so as to ensure compliance with Article 25 of the Convention. This further requires that the Government permanently revoke its policy of prosecuting persons who complain that they are victims of forced labour, a policy which, in its implementation, defeats the very purpose of a complaint mechanism which depends for its effectiveness, in part, on the ability of victims of forced labour to lodge complaints without fear of reprisals, and that, instead, it take increased action to prosecute perpetrators of forced labour. The Committee on these issues also requests the Government to cooperate more closely and in good faith with both the Liaison Officer a.i. and the Office. The Committee considers that, in doing so, the Government will also thereby be demonstrating its readiness to seriously address the further matters necessitated by the recommendations of the Commission of Inquiry as set out in further detail below.

(2)  Need to amend the relevant legislative texts, in particular
the Village Act and the Towns Act, in order to bring them
into line with the Convention

13. This remains the position of the Committee. At the same time, the Committee has noted an “Order directing not to exercise powers under certain provisions of the Towns Act, 1907, and the Village Act, 1908”, Order No. 1/99, as modified by an “Order Supplementing Order No. 1/99”, dated 27 October 2000, and it has accepted that these provisions could provide a statutory basis for ensuring compliance with the Convention in practice. However, the Committee has made clear that this would require bona fide effect to be given to the Orders by the local authorities and by civilian and military officers empowered to requisition or assist with requisition under the Acts.

14. The Committee has indicated that the latter would necessitate two things:

–           issuing specific and concrete instructions to the civilian and military authorities; and

–           ensuring that the prohibition of forced labour is given wide publicity.

(3)  Issuing specific and concrete instructions to the civilian and
military authorities

15. On this topic the Committee in its previous comment noted references to a series of texts, instructions and letters made by the Government in its report of that year. It acknowledged that these communications appeared to be in part a response to previous Committee requests that instructions be transmitted to authorities in the military indicating that forced labour has been declared unlawful in Myanmar. However, the Committee noted that it had been given minimal and in most instances no information as to the content of the communications. It considered this to be a matter of real concern as the Committee had previously expressed that clear and effectively conveyed instructions were required to indicate the kinds of practices that constitute forced labour and for which the requisitioning of labour is prohibited, as well as the manner in which the same tasks could be performed without use of forced labour. The Committee has previously enumerated a number of tasks and practices that need to be specifically identified in this regard, and it does so once again:

–           portering for the military (or other military/paramilitary groups, for military campaigns or regular patrols);

–           construction or repair of military camps/facilities;

–           other support for camps (guides, messengers, cooks, cleaners, etc.);

–           income-generation by individuals or groups (including work in army-owned agricultural and industrial projects);

–           national or local infrastructure projects (including roads, railways, dams, etc.);

–           cleaning/beautification of rural or urban areas; and

–           the supply of materials or provisions of any kind, which must be prohibited in the same way as demands for money (except where due to the State or to a municipal authority under the relevant legislation) since, in practice, demands by the military for money or services are often interchangeable.

16. In its previous observation the Committee considered that the starting point for the eradication of forced labour was to give very clear and concrete instructions to the authorities of the kinds of practices that constitute forced labour. It observed that the lack of information, except for the content of a single communication, suggested that this did not appear to have been done. It did not appear to the Committee to be a difficult exercise to construct the content of written instructions that would take account of these concerns and include all the above elements.

17. Having regard to the Government’s expression of preparedness to continue cooperation with the ILO, the Committee suggested that the elaboration of such instructions could be the topic of such cooperation, and that this might, for example, be done through the Liaison Officer a.i. or some other similar ILO liaison. The Committee asked that in its next report the Government supply information about the measures it had taken on this point, and that it also supply copies of the precise texts of the letters and instructions to which it has referred and in addition a translated version of each.

18. The Committee notes that in its latest report the Government has not supplied any of the information requested, nor has it otherwise addressed the concerns of the Committee on this point. The Committee notes that, from the report of the proceedings recorded in the 95th Session of the Conference in June 2006, and from the Conference Committee on the Application of Standards, the Government representative briefly replied to the concerns the Committee had raised; and that, with regard to the issuance of instructions to the civilian and military authorities:

As far as possible, English translations of the texts of these instructions had been supplied to the Committee of Experts. With regard to the instructions and correspondence issued by the Ministry of Defence, he emphasized that not all of these were made available to other ministries and departments of the Government as a matter of principle as they involved the national security interests of the country. Therefore, it was impossible to provide copies or English translations of such correspondence or instructions to a body of an international organization.

The Committee once again requests that in its next report the Government supply information about the measures it has taken on this point, and that it supply copies of the precise texts of the letters and instructions to which it has previously referred, including a translated version of each.

(4)  Ensuring that the prohibition of forced labour is given wide publicity

19. On this topic, the Committee noted in its previous observation that the Government in its report had made reference to a series of letters, briefings and awareness-raising workshops, which it stated represented efforts by the authorities to publicize the prohibitions on forced labour. The Committee acknowledged that, accepting the information supplied by the Government at face value, efforts appeared to have been made by the Government to transmit information about the fact that forced labour has been declared unlawful in Myanmar. However, as with the communications referred to earlier, the Committee had been given no information as to the content of these activities. This again was a matter of real concern, as the Committee considered it had no confidence that the briefings and workshops had been effective in conveying the information. As previously expressed, these workshops and briefings needed to clearly and effectively convey instructions about the kinds of practices that constitute forced labour and for which the requisitioning of labour is prohibited, as well as the manner in which the same tasks could be performed without use of forced labour. The Committee considered that, if trouble had been taken to undertake activities, then again it did not appear to be a difficult exercise to construct the content of the briefings and workshops to take account of these concerns.

20. The Committee again suggested that the construction of such communications to address its concerns, thereby avoiding the need for it to continue repeating this point, could be a topic pursued in the framework of cooperation with the ILO. In addition, having regard to the fact that the Liaison Officer a.i. had had an opportunity to attend one of these events in the past, the Committee requests that the Liaison Officer a.i. be informed in advance when briefings or workshops were to be held and to give him an opportunity to attend such events if he was able. The Committee considers that such access would demonstrate in a real way the commitment of the Government to the overall objective of the elimination of forced labour in Myanmar.

21. The Committee notes that, in its latest report, the Government has not supplied the information requested or otherwise addressed the concerns of the Committee on this point. The Committee notes the remark by the Government representative in the Conference Committee in June 2006 which stated:

Turning to the question of ensuring wide publicity on the prohibition of forced labour, he referred to the fact that in the past the ILO Liaison Officer a.i. had been allowed to attend a workshop in Myeik Township in Tanintharyi Division and another in Kawhmu Township in Yangon Division. His Government would try its best to accommodate the attendance of the ILO Liaison Officer a.i. at any future events if and when they were held.

The Committee again requests that the Government in its next report supply information which describes the content of the communications in the briefings, workshops and seminars on the prohibition of forced labour it has previously referred to, as well as translated copies of any material or documents used in connection with such briefings or workshops. In addition, the Committee requests once again that the Government supply information about measures it has taken to ensure that the Liaison Officer a.i. will be informed in advance when such activities are to be conducted, in order that he or she be given an opportunity to attend if able to.

(5)  Providing for the budgeting of adequate means for the replacement
of forced or unpaid labour

22. In its recommendations, the Commission of Inquiry emphasized the need to budget for adequate means to hire paid wage labour for the public activities which are today based on forced and unpaid labour. In its previous observations, the Committee pursued this matter and sought to obtain concrete evidence that adequate means are budgeted to hire voluntary paid labour. The Government has addressed this concern with repeated statements that there is always a budget allotment for each and every project and with allocations that include the cost of material and labour. The Committee has previously observed, however, that in practice forced labour continues to be imposed in many parts of the country, in particular in those areas with a heavy presence of the army, and that the budgetary allocations that may exist are apparently not adequate to make recourse to forced labour unnecessary.

23. The Committee recalls that in its previous report, the Government stated that it had issued instructions to the various ministries to provide an estimate of the labour costs of their respective projects. The Committee in its previous observation noted a reference in the Government’s report to “a budget allotment” set up by the Myanmar police force for the payment of wages of workers “called upon to contribute labour on an ad-hoc basis”. While noting these matters, the Committee asked the Government in its next report to provide detailed information about the measures taken to budget for adequate means for the replacement of forced or unpaid labour, considering that this information would demonstrate in a real way the commitment of the Government to the overall objective of the elimination of forced labour in Myanmar.

24. The Committee notes that in its latest report the Government has not supplied the requested information on this point. It notes that in the Conference Committee in June 2006, the representative of the Government stated that: “With regard to providing an adequate budget for the replacement of forced or unpaid labour, he informed the Committee that the allocation of adequate funds had been made in the state budget. The Government would provide the Committee of Experts in due course with the relevant information on the allocation of this budget.” The Committee therefore repeats its request that the Government, in its next report, provide detailed information about the measures taken to budget for adequate means for the replacement of forced or unpaid labour.

IV.   Final remarks

25. In addition to the communication dated 31 August 2006 and attached reports received from the ICFTU, to which the Committee has previously referred, the Committee notes the evaluation by the Liaison Officer a.i. of the forced labour situation from the section of the report under the heading, “Latest developments since March 2006”, of the Conference Committee at the 95th Session of the Conference in June 2006:

The Liaison Officer a.i. continues to receive allegations of forced labour. Although not in a position to verify the details himself, he is particularly concerned about persistent and detailed accounts – from sources both within Myanmar and across the border in Thailand – of forced labour being exacted by the army over the last few months in the context of military operations in northern Kayin (Karen) State. In addition to villagers being forced to accompany army columns as porters (along with convicts from prisons), owners of bullock carts were reportedly forced to transport food and other supplies to front-line troops. (C.App./D.5, paragraph 10.)

26. The Committee also notes the discussions and conclusions concerning Myanmar of the Governing Body at its 297th Session in November 2006. In its conclusions, the Governing Body indicated that great frustration had been expressed that the authorities had not been able to agree on a mechanism to deal with forced labour complaints within the framework set out in the Conference conclusions; that they had missed a critical opportunity (during the October 2006 discussions) to demonstrate a real commitment to cooperating with the ILO to resolve the problem of forced labour; and that at the same time there was widespread and profound concern that the practice of forced labour in Myanmar was continuing. The Governing Body concluded, among other things, that the Myanmar authorities should, as a matter of utmost urgency and in good faith, conclude with the Office an agreement on a credible mechanism to deal with complaints of forced labour, on the specific basis of the compromise text proposed by the ILO in October 2006, and also that, irrespective of the status of the Government’s moratorium on the prosecution of complainants, any further move to prosecute complainants would open the way to international legal steps on the basis of article 37.1 of the ILO Constitution, in accordance with the conclusions of the Conference Selection Committee in June 2006. The Governing Body indicated that a specific item would be placed on the agenda of its March 2007 session, in order to allow legal options to be considered, including the possibility of requesting an advisory opinion of the International Court of Justice on specific legal questions, and that the Governing Body in March 2007 would revisit the question of placing a specific item on the agenda of the 2007 session of the Conference, in order to allow it to review what further action may be taken.

27. The Committee fully concurs with the views expressed by the Governing Body, and it also trusts that the implementation of the very explicit practical requests made by this Committee to the Government will demonstrate the true commitment of the Government to rectify the violations of the Convention identified by the Commission of Inquiry and resolve this long‑running problem of forced labour to which there does exist a solution.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

I. Historical background

1. The Committee has been commenting on this extremely serious case since its first observation over 30 years ago. The grave situation in Myanmar has also been the subject of overwhelming criticism and condemnation in the Conference Committee on the Application of Standards of the International Labour Conference on nine occasions between 1992 and 2005, in the International Labour Conference at its 88th Session in June 2000, and in the Governing Body, by governments and social partners alike. The history is set out in detail in the previous observations of this Committee in more recent years, particularly since 1999.

2. The major focus of the criticisms by each of the ILO bodies relates to the outcome of a Commission of Inquiry appointed by the Governing Body in March 1997 following a complaint submitted in June 1996 under article 26 of the Constitution. The Commission of Inquiry concluded that the Convention was violated in national law and in practice in a widespread and systematic manner, and it made the following recommendations:

(1)  that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention;

(2)  that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and

(3)  that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced.

The Commission of Inquiry emphasized that, besides amending the legislation, concrete action needed to be taken immediately to bring to an end to the exaction of forced labour in practice, in particular by the military.

3. In its previous observations in 2002 to 2005, the Committee of Experts identified four areas in which measures should be taken by the Government to achieve this outcome:

- issuing specific and concrete instructions to the civilian and military authorities;

-  ensuring that the prohibition of forced labour is given wide publicity;

-  providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and

-  ensuring the enforcement of the prohibition of forced labour.

4. The flagrant continuing breaches of the Convention by the Government and the failure to comply with the recommendations of the Commission of Inquiry and the observations of the Committee of Experts and other matters arising from the discussion in the other bodies of the ILO, led to the unprecedented exercise of article 33 of the Constitution by the Governing Body at its 277th Session in March 2000, followed by the adoption of a resolution by the Conference at its June 2000 session.

II. Developments since the Committee’s last observation

5. The Committee notes the documents submitted to the Governing Body at its 292nd and 294th Sessions (March and November 2005) on developments concerning the question of the observance by the Government of Myanmar of Convention No. 29, as well as the discussions and conclusions of the Governing Body during these sessions and of the Conference Committee on the Application of Standards in June 2005.

6. In addition, the Committee notes the Government’s report, received in a series of communications on 9 June, 19 August, 22 August and 2 September 2005, and the comments by the International Confederation of Free Trade Unions (ICFTU) contained in a communication dated 31 August 2005 received on 12 September 2005, which was accompanied by some 1,100 pages of documents from many sources, reporting on the persistence in 2005 of the use of forced labour in Myanmar. The material forwarded purports to be "from nearly every State and Division of the country on several hundreds of cases" of forced labour, including forced portering, repair and maintenance of army camps and villages for displaced people, cultivation of paddy and other fields, road construction, clearing of jungle areas, "human minesweeping", patrolling and sentry duty. A synopsis of the communication from the ICFTU was forwarded to the Government by letter dated 3 October 2005 together with the indication that, in accordance with established practice, the communication of the ICFTU would be brought to the attention of the Committee together with any comments that the Government would wish to make in response. No response has yet been received from the Government to this very concerning information, but the Committee acknowledges that there has been inadequate time for the Government to respond to the detailed communication, which it requests the Government to do in its next report.

7. Before addressing its particular concerns, the Committee notes that the Government has, in various documents, interventions before the ILO bodies and meetings with various High-Level Teams, expressly indicated its commitment to the elimination of forced labour in its country. More recently this has been stated publicly in the Conference Committee on the Application of Standards when the report of the proceedings recorded that the Government representative indicated that, in their determination to eliminate forced labour and to continue Myanmar’s cooperation with the ILO, the authorities in his country had taken significant actions in response to the conclusions and the aide-mémoire of the very High-Level Team (vHLT) which had visited Myanmar in February 2005.

8. At the Governing Body session in November 2005, the Ambassador of Myanmar, on behalf of the Government, also expressed willingness to cooperate with the ILO. In turn, the Governing Body indicated that the Government should take the opportunity before the next session of the Governing Body in March 2006, to resume an effective dialogue with the Office about the issues of forced labour and that pending such dialogue, the Government should "cease prosecuting victims of forced labour or their representatives and instead take action against the perpetrators".

9. The Committee assumes and expects these positive expressions by the Government to have been made in good faith. As with other ILO bodies, it is concerned that the words should be followed by action and that the credibility and commitment of the Government is best demonstrated by taking the action which has previously been specified by the Commission of Inquiry and this Committee and more recently the Governing Body.

III. Addressing the recommendations of the Commission of Inquiry

10. In view of the extent of the comments which have taken place in each of the ILO bodies since the Commission of Inquiry, the Committee considers it important to set out with absolute clarity the matters that the Government needs to address as a consequence of the Commission of Inquiry.

(1)  That the relevant legislative texts, in particular the Village Act
and the Towns Act, be brought into line with the Convention

11. In its observation of 2001, the Committee noted that the Village Act and the Towns Act still needed to be amended, and this remains the position of the Committee. At the same time, the Committee accepted that an "Order directing not to exercise powers under certain provisions of the Towns Act, 1907, and the Village Act, 1908", Order No. 1/99, as modified by an "Order Supplementing Order No. 1/99", dated 27 October 2000, could provide a statutory basis for ensuring compliance with the Convention in practice. However, the Committee required that bona fide effect be given to the Orders by the local authorities and by civilian and military officers empowered to requisition or assist with requisition under the Acts.

12. As referred to above, the Committee indicated that this required two things:

- issuing specific and concrete instructions to the civilian and military authorities;

-  ensuring that the prohibition of forced labour is given wide publicity.

Issuing specific and concrete instructions to the civilian
  and military authorities

13. On this topic the Committee notes the following information supplied by the Government:

-  The translated text of an instruction issued by the Myanmar police force of the Ministry of Home Affairs, No. 1002(23)/202/Oo 4, dated 26 May 2005, which refers to Order No. 1/99 and to its Supplementing Order. The English translation of this instruction states: "As requisition of forced labour is declared unlawful and subject to legislative action, all regional authorities, armed forces personnel, police force personnel and other civilian authorities are prohibited from exacting forced labour". It states further that, "Police force personnel are instructed … to strictly abide by the Orders [No. 1/99 and its Supplementing Order]".

-  The translated text of an "Additional Instruction" issued by the Department of General Administration of the Ministry of Home Affairs, No. 200/108/Oo, dated 2 June 2005, which supplements Instruction No. 1/2004, dated 19 August 2004, of the Department of General Administration. The supplemental instruction specifies that the prohibition on the requisition of forced labour under Instruction No. 1/2004 applies to construction works (motor roads, railroads, construction of embankments/dykes, and other works for national or regional infrastructure projects), and also to clearing neighbourhoods and other works for rural and urban areas. It also instructs officials "not to collect or demand money" without consent.

-  A reference to several new instructions issued in 2004 and 2005 by the Ministry of Home Affairs: No. Pa Hta Ya (Ah Hta Au)/Oo-3 dated 12 December 2004 (on the requisitioning of forced labour), and by the Department of General Administration under the Ministry of Home Affairs: No. 100/108-1/Oo 1, dated 18 January 2005 (investigating complaints of forced labour) and No. 100/108-1/Oo 1 dated 10 February 2005 (orders on prohibition of requisitioning).

-  A reference to letter No. 31 Ba (Na Nga Kha-2) 2000 (2), dated 11 July 2000, issued by the Minister’s Offices of the Ministry of Defence; and letter No. 1865/18/Oo (3) dated 15 May 1999; letter No. 1865/15/Oo (3) dated 6 November 2000; and telegram No. (55-Oo) which were issued by the offices of the Commander-in-Chief (army).

-  A reference to instructions issued by the Yangon Military Command to the divisions, strategic commands, regiments, and units "to strictly abide by the law".

-  A reference to letter No. 18-3/11 Oo, dated 10 November 2000, which ordered that "a complete record of discussions" be submitted to the Yangon Military Command. The Government states that "at the regimental level, the organizing committee had explained the respective law to the platoon level officers and other ranks", and that the latter "were also required to sign that they understood the orders". The Government states that these records were submitted to the Command Headquarters which, in turn, reported this information to the Commander-in-Chief (army), "together with the relevant documents" that Order 1/99 and its Supplementing Order "had already been explained down to the lowest level".

-  A reference to "discussions … made in in-service organizing committee meetings".

-  A reference to an instruction concerning the representative of the Ministry of Defence on the Convention No. 29 Implementation Committee, issued by the office of the Commander-in-Chief (army) in letter No. 4/305/3 (Kha) 18/ Oo 1 dated 27 November 2002.

14. The Committee notes the texts and references to instructions and letters referred to above. The Committee acknowledges that these communications appear to be in part a response to the previous Committee requests that instructions be transmitted to authorities in the military indicating that forced labour has been declared unlawful in Myanmar. However, the Committee has been given minimal, and in most instances no information, as to the content of the communications. This is a matter of real concern as the Committee has previously expressed that clear and effectively conveyed instructions are required to indicate the kinds of practices that constitute forced labour and for which the requisitioning of labour is prohibited, as well as the manner in which the same tasks can be performed without use of forced labour. The Committee has in a previous observation enumerated a number of tasks and practices requiring identification as closely related with the exaction of forced labour, namely:

-  portering for the military (or other military/paramilitary groups, for military campaigns or regular patrols);

-  construction or repair of military camps/facilities;

-  other support for camps (guides, messengers, cooks, cleaners, etc.);

-  income-generation by individuals or groups (including work in army-owned agricultural and industrial projects);

-  national or local infrastructure projects (including roads, railways, dams, etc.);

-  cleaning/beautification of rural or urban areas;

-  the supply of materials or provisions of any kind, which must be prohibited in the same way as demands for money (except where due to the State or to a municipal authority under the relevant legislation) since, in practice, demands by the military for money or services are often interchangeable.

15. The starting point for the eradication of forced labour is to give very clear and concrete instructions to the authorities of the kinds of practices that constitute forced labour. The combination of the lack of information and the one example of the content of one communication (namely, the Additional Instruction No. 200/108/Oo of 2 June 2005) suggests that this does not appear to have been done. It does not appear to the Committee to be a difficult exercise to construct the content of the written communication which would take account of these concerns and include all of the above elements.

16. Having regard to the Government’s expression of preparedness to continue cooperation with the ILO, the Committee suggests that the construction of such communications to implement the Committee concerns and thereby avoiding continuing repetition of this point by the Committee, could be the topic of such a cooperation. This could for example be done through the Liaison Officer a.i. or some other similar ILO liaison. The Committee asks that in its next report the Government supply information about the measures it has taken on this point, and that it also supply copies of the precise texts of the letters and instructions to which it has referred, and in addition a translated version of each.

(2)  Ensuring that the prohibition of forced labour is given wide publicity

17. On this topic, the Committee notes that the Government, in its latest report (Annex C), refers to the following:

-  Letters No. 31, No. 1865/18/Oo (3) and No. 1865/15/Oo (3) and telegram No. (55-Oo), referred to specifically above, were issued by the offices of the Commander-in-Chief (army) and "were also transmitted to all the division command headquarters to thoroughly and clearly explain and direct all Tatmadawmen, strictly not to use forced labour and requisition of labour".

-  A series of "briefings" were carried out between 1999 and 2004 in 14 States and Divisions at the district, township, village and ward levels by "responsible officials" from the Department of General Administration, and which involved "explanations" of Order No. 1/99 and its Supplementing Order.

-  A table of data that purports to show the number of attendees at these briefings: a total of 21,505 persons attending 65 district-level briefings; a total of 240,500 persons at five briefings in each of 325 townships; a total of 263,427 persons attending single briefings in 1,648 wards and villages; and an overall total attendance of 525,432 persons at 18,172 briefings.

-  A series of two-day "awareness-raising" workshops on the implementation of Convention No. 29, organized by field observation teams, and which it says were held between May and December 2004.

18. The Committee acknowledges that, accepting the information supplied by the Government at face value, efforts appear to have been made by the Government to transmit information about the fact that forced labour has been declared unlawful in Myanmar. However, as with the communications referred to above, the Committee has been given no information as to the content of the briefings and workshops. This again is a matter of real concern, as the Committee has no confidence that the briefings and workshops have been effective in conveying the information. As previously expressed, these workshops and briefings need to clearly and effectively convey instructions about the kinds of practices that constitute forced labour and for which the requisitioning of labour is prohibited, as well as the manner in which the same tasks can be performed without use of forced labour. If the trouble has been taken to undertake activities then again, it does not appear to the Committee to be a difficult exercise to construct the content of the briefings and workshops to take account of these concerns.

19. The Committee suggests that the construction of such communications to address its concerns, thereby avoiding continuing repetition of this point by the Committee, could be a topic to be pursued in the framework of the cooperation with the ILO. The Committee asks the Government in its next report to supply information which describes the content of the communications in the briefings and workshops on the prohibition of forced labour and copies of any material or documents provided for such briefings or workshops. In addition, having regard to the fact that the Liaison Officer a.i., has had an opportunity to attend one of these events in the past, the Committee requests that the Liaison Officer a.i. be informed in advance when briefings or workshops are to be held and to give him an opportunity to attend such events if he is able. Such access would demonstrate in a real way the commitment of the Government to the overall objective of the elimination of forced labour in Myanmar.

(3)  Providing for the budgeting of adequate means
for the replacement of forced or unpaid labour

20. In its recommendations, the Commission of Inquiry emphasized the need to budget for adequate means to hire paid wage labour for the public activities which are today based on forced and unpaid labour. In its report, the High-Level Team (2001) stated that it had received no information allowing it to conclude that the authorities had indeed provided for any real substitute for the cost-free forced labour imposed to support the military or public works projects.

21. In its previous observations, the Committee pursued the matter and sought to obtain concrete evidence that adequate means are budgeted to hire voluntary paid labour. The Government in response has reiterated its previous statements according to which there is always a budget allotment for each and every project, with allocations which include the cost of material and labour. The Committee observed, however, that in practice forced labour continued to be imposed in many parts of the country, in particular in those areas with a heavy presence of the army, and that the budgetary allocations that may exist were not adequate to make recourse to forced labour unnecessary.

22. In its latest report, the Government states that it has issued instructions to the various ministries to provide an estimate of the labour costs of their respective projects. The Committee also notes a reference to "a budget allotment" set up by the Myanmar police force for the payment of wages of workers "called upon to contribute labour on an ad-hoc basis" (Appendix A of the Government’s report).

23. While noting these matters, the Committee indicates that, in view of the widespread nature of the practices of forced labour which have been the ongoing concern of the Commission of Inquiry and each of the ILO bodies, including this Committee up to the present time, the Committee once again asks the Government in its next report to provide detailed information about the measures taken to budget for adequate means for the replacement of forced or unpaid labour. Again this information would demonstrate in a real way the commitment of the Government to the overall objective of the elimination of forced labour in Myanmar.

(4)  Ensuring the enforcement of the prohibition
of forced labour-monitoring machinery

24. The Committee previously noted that measures taken by the Government to ensure the enforcement of the prohibition of forced labour have included the establishment of seven field observation teams empowered to carry out investigations into allegations of the use of forced labour, the findings of which are submitted to the Convention No. 29 Implementation Committee.

25. The Committee also notes the following matters:

-  the report of the Liaison Officer a.i. to the Governing Body in March 2005 that, of the 46 cases transmitted to the Convention No. 29 Implementation Committee in 2004, in only five cases were allegations of forced labour upheld (GB.292/7/2, paragraph 11);

-  that the view of the Liaison Officer a.i. is that "the mechanism put into place by the authorities for addressing forced labour allegations, that of sending an ad hoc team composed of senior government officials to the region to conduct an investigation, is not well suited to dealing with the increasing numbers of cases. As the number of allegations of forced labour has increased, they have tended to be investigated internally by the General Administration Department or by the Ministry of Defence" (GB.292/7/2, paragraph 12);

-  that the Liaison Officer a.i. received new complaints of forced labour and the requisition of forced labour in December 2004, which led that same month to five interventions transmitted to the Convention No. 29 Implementation Committee, and that as of 18 February 2005 the Liaison Officer a.i. had received 14 new cases, leading to five additional interventions in February 2005 (GB.292/7/2, paragraphs 9 and 13);

-  that, according to an updated report submitted to the Conference Committee on the Application of Standards in June 2005, the Liaison Officer a.i. made interventions on five additional cases in March and April of 2005 (ILC, 93rd Session, C.App./D.6/D, paragraph 11);

-  that the Government’s latest report (Annex F) and the reports of the Liaison Officer a.i. (ILC, 93rd Session, C.App./D.6/DIII, paragraph 13; GB.292/7/2, paragraph 14; GB.292/7/2(Add.), paragraph 4) in relation to the series of responses in March, April, and May of 2005 from the Convention No. 29 Implementation Committee to the interventions of the Liaison Officer a.i., indicate that in only three cases did investigations by field observation teams lead to prosecution and punishment of local village officials. Further, that in every case involving the armed forces or police officials, either the allegations were reported to have proved groundless following internal investigations or else no information was provided;

-  that the report of the Liaison Officer a.i. to the Conference Committee on the Application of Standards in June 2005 (C.App./D.6/D.III, paragraphs 12 and 14), as well as the intervention of the Government representative in the Conference Committee in June 2005, indicate that the Government has begun to systematically prosecute victims of forced labour who lodge what the Government considers to be "false complaints", and that, in light of this, the ILO instructed the Liaison Officer a.i. to temporarily suspend dealing with new allegations of forced labour;

-  that on 1 March 2005 the Office of the Commander-in-Chief (army) established a "focal point" in the army headed by a Deputy Adjutant-General and assisted by seven grade 1 staff officers, which the Government indicated to the Liaison Officer a.i. was intended "to facilitate cooperation with the ILO on cases [of forced labour] concerning the military" (GB.292/7/2(Add.), paragraph 3). Two of the interventions of the Liaison Officer a.i. in April 2005, which concerned allegations of forced recruitment of minors into the army, were addressed to the new army focal point (C.App./D.6/D.III, paragraph 11). The Committee also notes the Government’s indication in its report that the army focal point had thus far investigated three of five cases of alleged forced recruitment, and that following investigation one case was rejected while in the two others, "two persons were returned to the care of their parents", with no apparent prosecution of those responsible for the forced recruitment. The Government indicated that investigations had been initiated on the two other forced recruitment cases, and that the single case involving an allegation of forced labour by the army was under internal investigation and that the results would be forwarded to the Liaison Officer a.i.;

-  the Government’s statement in its latest report that among the 50 complaints of forced labour or forced recruitment in 2004, 23 involved the armed forces, and its apparent indication that in two of the 15 cases of alleged forced recruitment by the army, "action had … been taken against those who enforced recruitment against the existing laws and regulations";

-  the Government’s indications in its report and the tables attached to its report (Annexes E and G) that purport to show that "action had been taken" against officers or other members of the military in 17 cases of forced recruitment in 2002 and in five cases of forced labour in 2003.

26. Taking into account the above matters, the Committee is extremely concerned that the assessments made by the field observation teams and the Convention No. 29 Implementation Committee, and those made thus far by the army focal point, appear to lack independence and credibility. The Committee notes with concern from a report submitted for discussion to the 294th Session of the Governing Body in November 2005 (GB.294/6/2) that "recent developments have seriously undermined the ability of the Liaison Officer a.i. to perform his functions" (paragraph 7), and that, while he has continued to receive complaints from victims or their representatives concerning ongoing forced labour or forced recruitment, he is unable to refer these cases to the competent authorities as he did in the past, in part because of the Government’s policy of prosecuting victims for allegedly false complaints of forced labour (paragraph 8).

27. The Committee fully concurs with the view expressed by the Governing Body that it is imperative that the Government should cease prosecuting persons who complain that they are victims of forced labour and instead take increased action to prosecute perpetrators of forced labour. This requires the Government to take the necessary measures to develop credible, fair and more effective procedures for investigating allegations of forced labour, in particular those involving the army. The Committee on this issue also requests the Government to cooperate more closely with the Liaison Officer a.i. and the Office. The Committee reiterates the importance of instituting a mechanism such as the Facilitator as a credible channel for the treatment of complaints that protects the victims and leads to the prosecution, punishment and imposition of sanctions against those responsible for the exaction of forced labour.

IV.  Final remarks

28. Apart from the communication dated 31 August 2005 from the ICFTU, to which the Committee has previously referred, the Committee notes the general evaluation by the Liaison Officer a.i. of the forced labour situation, on the basis of all the information available to him, which "continues to be … that although there have been some improvements since the Commission of Inquiry, the practice remains widespread throughout the country, and is particularly serious in border areas where there is a large presence of the army" (February 2005 report of the Liaison Officer a.i., document GB.292/7/2, paragraph 8).

29. The Committee also notes the conclusions concerning Myanmar, adopted by the Governing Body at its 294th Session in November 2005. In its conclusions, the Governing Body indicated that there was a general feeling of grave concern about the degradation of the situation, and that members of the Governing Body were particularly concerned and critical about the recent threats which had been made against the Liaison Officer a.i. as well as the former Acting Liaison Officer and Informal Facilitator, and which resulted in paralysing his capacity to discharge his responsibilities. A number of Members were of the view that the only way which was left to the ILO, in light of the further very disturbing developments which had taken place, was to enable the Conference itself to revisit the measures adopted in the 2000 ILC resolution under article 33 of the Constitution, by placing a specific item for that purpose on the 2006 agenda in order to review and, as appropriate, to strengthen them. However, taking into account the willingness expressed by the representative of the Government to cooperate and the fact that any step relating to action by the Conference would in any case need to be reconfirmed at its next session, the Governing Body, among other things, requested the Government at various levels, including the senior leadership, to take advantage of the time available prior to March 2006 to resume an effective dialogue with the International Labour Office.

30. The Committee fully concurs with the view expressed by the Governing Body and trusts that the implementation of the very explicit practical requests made by this Committee to the Government, will demonstrate the true commitment of the Government to resolve this long running problem of forced labour to which there is a solution.

[The Government is asked to supply full particulars to the Conference at its 95th Session.]

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

1. The Committee notes the Government’s report and the comments by the International Confederation of Free Trade Unions (ICFTU) contained in communications dated 14 June, 31 August, 1 September, 7 October and 10 November 2004. These comments, which are accompanied by many documents reporting the persistence of the use of forced labour in Myanmar, have been forwarded to the Government for any comments which it wishes to make in this respect. The Committee also notes the documents submitted to the Governing Body at its 289th and 291st Sessions (March and November 2004) on developments concerning the question of the observance by the Government of Myanmar of Convention No. 29, as well as the discussions in the Governing Body during these sessions and in the Conference Committee on the Application of Standards in June 2004.

2. Once again this year, the Committee is examining the measures adopted by the Government to give effect to the recommendations of the Commission of Inquiry appointed by the Governing Body in March 1997 following a complaint submitted in June 1996 under article 26 of the Constitution. In the report that it published in July 1998, the Commission of Inquiry concluded that the Convention was violated in national law and in practice in a widespread and systematic manner, and it adopted the following recommendations:

(a)  that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention;

(b)  that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and

(c)  that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced.

Amendment of the legislation, paragraph 539(a) of the report
of the Commission of Inquiry

Brief history

3. The Committee has previously set out the history of this situation in detail in earlier observations. In brief, the Committee recalls that, in its report, the Commission of Inquiry urged the Government to take the necessary steps to ensure that the Towns Act, 1907, and the Village Act, 1908, which confer broad powers upon the local authorities to requisition labour, in violation of the Convention, were without further delay brought into conformity with the Convention. In summary, under particular sections of these acts, non-voluntary work or services may be exacted from any person residing in a village tract or in a town ward, and failure to comply with a requisition made under the legislation is punishable with penal sanctions. The Commission of Inquiry found that these Acts therefore provide for the exaction of "forced or compulsory labour" within the definition of Article 2, paragraph 1, of the Convention.

4. In its observation in 2001, the Committee noted that although the Village Act and the Towns Act still needed to be amended, an "Order directing not to exercise powers under certain provisions of the Towns Act, 1907, and the Village Act, 1908", Order No. 1/99, as modified by an "Order Supplementing Order No. 1/99", dated 27 October 2000, could provide a statutory basis for ensuring compliance with the Convention in practice, if bona fide effect was given by the local authorities and by civilian and military officers empowered to requisition or assist with requisition, under the Acts. In effect, the Order provides for the possibility of requisitioning labour in exceptional circumstances, where such work or service is important and of direct interest for the community and in the event of an emergency posing an imminent danger to the general public and the community, and in circumstances where it is impossible to obtain voluntary labour by the offer of the usual rates of wages. It also provides for the possibility of issuing directives which may set aside the restrictions on powers of requisitioning. In this respect, the Committee indicated that a bona fide application of this Order involved the adoption of the measures indicated by both the Commission of Inquiry in paragraph 539(b) of its report and by the Committee of Experts in its previous comments (regarding specific instructions and the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour).

5. The Committee observes that, as set out in the paragraphs below, the measures requested have not been adopted or have only been adopted partially and that the exaction of forced labour persists on a broad scale. It appears that the orders have not been effective and that it has therefore become more imperative to take action without delay for the amendment or repeal of the Towns and Village Acts with a view to the elimination of the legislative basis for the exaction of forced labour and the incompatibility of these texts with the Convention. The Committee notes that, in his intervention in the Conference Committee on the Application of Standards in June 2004, the Government representative of Myanmar stated that, with regard to the "amendment of the Village Act and the Towns Act (…) his Government had been exploring ways and means to modify certain of their provisions" and had consulted with various parties in this respect. Recalling that the Commission of Inquiry recommended that these amendments should be done without further delay and completed at the very latest by 1 May 1999, the Committee of Experts hopes that the Government will finally take the necessary measures to amend in the very near future the provisions in question of the Towns Act, 1907, and the Village Act, 1908, as it has been promising to do for over 30 years.

Measures to bring an end to the exaction of forced labour in practice (paragraph 539(b) of the report of the Commission of Inquiry) and
available information on existing practices

6. The Committee recalls that, in its recommendations, the Commission of Inquiry emphasized that, besides amending the legislation, concrete action needed to be taken immediately to bring to an end the exaction of forced labour in practice, in particular by the military. In its previous observations, the Committee of Experts identified four areas in which measures should be taken by the Government to achieve this outcome: issuing specific and concrete instructions to the civilian and military authorities; ensuring that the prohibition of forced labour is given wide publicity; providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and ensuring the enforcement of the prohibition of forced labour.

7. Specific and concrete instructions. In its previous observations, the Committee drew the Government’s attention to the fact that, in the absence of specific and concrete instructions enabling the civilian and military authorities to identify the various forms and manners of exaction of forced labour, it would be difficult to bring an end to forced labour in practice. The Committee observed that, although "explanations", "instructions" and "directives" had been given at offices of the Peace and Development Councils at various levels and the offices of the General Administration Department, the Department of Justice and the police forces and township courts, and despite the guidance provided by the field observation teams during their visits in the country, the Government had supplied no details on the contents of the explanations, instructions, directives or guidance, nor had it provided the text of any instruction or directive containing details of the tasks for which the requisitioning of labour is prohibited or the manner in which the same tasks are to be performed without resorting to forced labour.

8. The Committee notes that, in its latest report, the Government states that it has made every effort to ensure the prohibition of the use of forced labour under Order No. 1/99 and its Supplementing Order. The Government also provides three documents intended to support its contentions (Instructions No. 1/2004, dated 19 August 2004, of the Department of General Administration, in Burmese; the Directive issued by the Supreme Court to all states and divisional judges, all district judges and all township judges, by letter dated 2 November 2000 and letter No. 1002(3)/202/G4 "to prevent illicit summon on the requisition of forced labour", signed by the director-general of the police force, which had already been provided to the ILO). The Committee observes that none of these documents would enable the authorities concerned to identify practices which constitute forced labour.

9. The Committee also notes from the Government’s last report, and the intervention of the Government representative in the Conference Committee on the Application of Standards in June 2004, the reference to the holding of information workshops on the implementation of Convention No. 29 in various regions of the country during the course of 2004. The Committee considers that such workshops do not appear to have had the desired effect and that, until effective measures have been taken to enable the civilian and military authorities to identify the various forms and manners of exaction of forced labour that should be prohibited, it will not be possible to bring an end to forced labour in practice.

10. In conclusion on this point, the information provided by the Government shows once again that clear and effectively conveyed instructions are still required to indicate to all the representatives of the authorities, including the members of the armed forces, the kinds of practices that constitute forced labour and for which the requisitioning of labour is prohibited, and the manner in which the same tasks are henceforth to be performed. In a previous observation, the Committee enumerated a number of tasks and practices which are closely related with the exaction of forced labour, namely:

-  portering for the military (or other military/paramilitary groups, for military campaigns or regular patrols);

-  construction or repair of military camps/facilities;

-  other support for camps (guides, messengers, cooks, cleaners, etc.);

-  income-generation by individuals or groups (including work in army-owned agricultural and industrial projects);

-  national or local infrastructure projects (including roads, railways, dams, etc.);

-  cleaning/beautification of rural or urban areas;

-  the supply of materials or provisions of any kind, which must be prohibited in the same way as demands for money (except where due to the State or to a municipal authority under the relevant legislation) since in practice, demands by the military for money or services are often interchangeable.

The Committee once again requests that these matters be addressed urgently.

11. Publicity given to orders. The Committee noted previously, from the information provided by the Government, that measures continued to be taken in order to make the prohibition of forced labour contained in Order No. 1/99 and its Supplementing Order widely known by all the authorities concerned and the general public. It noted that these measures included conveying information through bulletins and pamphlets, distributing copies of orders translated into ethnic languages, and the work of field observation teams.

12. In its last report, the Government reaffirms that copies of Order No. 1/99 and its Supplementing Order have been widely distributed throughout the country. The Committee understands, from the information provided by the Government, which appears to be confirmed by the Liaison Officer a.i., that the translation of the Orders into the four Chin dialects has been completed. In this respect, the Committee notes that, according to the Liaison Officer a.i., "although all the translations have been completed, he has yet to see these translations posted in any ethnic area that he has visited, or to meet anyone in these areas who has seen these translations, and he is therefore yet to be convinced that they have been widely distributed by the authorities" (document GB.289/8, submitted to the 289th Session of the Governing Body in March 2004, paragraph 10).

13. The Committee hopes that the Government will provide copies of the instructions issued to the armed forces and information on the meetings, workshops and seminars organized for the dissemination of these instructions in the armed forces. It once again hopes that measures will be taken to ensure that the texts, duly translated, are distributed and displayed in ethnic areas, which are those where the prevalence of forced labour practices appear to be the highest.

14. Budgeting of adequate means. In its recommendations, the Commission of Inquiry emphasized the need to budget for adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour. In its report, the High-level Team (2001) stated that it had received no information allowing it to conclude that the authorities had indeed provided for any real substitute for the cost-free forced labour imposed to support the military or public works projects.

15. In its previous observations, the Committee pursued the matter and sought to obtain concrete evidence that adequate means are budgeted to hire voluntary paid labour. The Government in response has reiterated its previous statements according to which there is always a budget allotment for each and every project, with allocations which include the cost of material and labour. The Committee observed, however, that in practice forced labour continued to be imposed in many parts of the country, in particular in those areas with a heavy presence of the army, and that the budgetary allocations that may exist were not adequate to make recourse to forced labour unnecessary. The Government has not provided any information on this subject in its latest report. The Committee once again asks that adequate means be budgeted for the civilian and the military authorities to allow them to carry out their tasks without using forced labour and that the next report indicate the measures taken in this regard.

16. Monitoring machinery. With regard to the measures taken by the Government to ensure the enforcement of the prohibition of forced labour, the Committee notes the information provided by the Government representative to the Conference Committee on the Application of Standards in June 2004. It notes that these measures include the establishment of seven field observation teams empowered to carry out investigations into allegations of the use of forced labour, the findings of which are submitted to the Convention 29 Implementation Committee. With regard to the activities of the Implementation Committee, the Committee of Experts notes, according to the information contained in the document submitted to the Governing Body in November 2004 (GB.291/5/2, paragraph 13), that "recent experience of the Liaison Officer a.i. has shown that specific complaints of forced labour brought to the attention of the Convention 29 Implementation Committee are systematically denied, and cases brought directly before the courts are rejected. The picture which emerges is of a response by the authorities to complaints of forced labour that is lacking in credibility. This is all the more concerning given the types of cases involved. While a number of the allegations which have been raised with the authorities are extremely serious cases involving the army often in remote areas, others relate to comparatively minor cases of forced labour imposed by local officials in central Myanmar. Action on these latter cases should be more straightforward because of both the location and nature of the offences involved. The fact that the authorities have not taken steps to deal with these latter cases must raise serious doubts as to the possibility of making significant progress in those areas under the control of the army, where all the indications are that the forced labour situation is far more serious in both form and extent".

17. The Committee also notes that, in the view of the Liaison Officer a.i., "the mechanism put in place by the authorities for addressing forced labour allegations, that of sending an ad hoc team composed of senior government officials to the region to conduct an investigation, is not well suited to dealing with the increasing numbers of cases" (GB.291/5/1, paragraph 12). The Liaison Officer a.i. indicates that allegations of forced labour tend to be investigated internally by the General Administration Department. Cases concerning the army (that is, cases of forced recruitment, or forced labour allegedly imposed by the army) are referred by the Convention 29 Implementation Committee to the representative of the Ministry of Defence. These cases are also investigated internally by the army. The Committee of Experts notes that, "of the 38 cases referred to the Convention 29 Implementation Committee, responses have been received in 18 cases. In all these cases, the allegation that forced labour was involved was rejected. In the six cases where individuals complained directly to the court, three cases were rejected on the grounds that there was no prima facie evidence of forced labour (…)".

18. The Committee observes, as does the Liaison Officer a.i., that the assessments made by the field observation teams and the Convention 29 Implementation Committee appear to lack credibility, particularly as the ILO continues to receive trustworthy evidence that this practice continues to be widespread. The Committee once again expresses the hope that the Government will take the necessary measures to develop a credible, fair and more effective procedure for investigating allegations of forced labour, in particular those involving the army, and that it will cooperate more closely in future with the Liaison Officer.

Information available on actual practice

19. The Committee notes that the Liaison Officer a.i.’s general evaluation of the forced labour situation, on the basis of all the information available to him is that "although there have been some improvements since the Commission of Inquiry, the practice remains widespread throughout the country, and is particularly serious in border areas where there is a large presence of the army" (report of the Liaison Officer a.i., document GB.291/5/1, paragraph 9). The Committee further notes that at the time of his report (22 October 2004), the Liaison Officer a.i. had received a total of 72 complaints in 2004, and that interventions had been made with the authorities on 38 cases. Of these 38 cases, 18 concerned various forms of forced labour (other than forced recruitment); 13  concerned forced recruitment of minors into the armed forces; one case concerned alleged harassment of a complainant; and six were direct complaints by individuals to Myanmar courts under section 374 of the Penal Code, copies of which had been communicated to the Liaison Officer a.i. by the complainants.

Recent information

20. In communications dated 14 June, 31 August, 1 September and 7 October 2004, the ICFTU forwarded many documents to the ILO bearing witness to the persistence of the systematic use of forced labour by the military authorities on a very broad scale. The cases of forced labour described in these documents occurred in many areas of Myanmar (the States of Chin, Kachin, Kayin, Mon, Rakhine and Shan and the Ayeyarwady, Magway, Bago, Sagaing, Tenasserim and Yangon Divisions) during the period between September 2003 and September 2004, and are supported by precise information referring to the locations and dates of the reported facts and the army units and the names of the officers involved.

21. The documents provided include a report by the Federation of Trade Unions of Burma (FTUB) of over 100 pages in length entitled "Forced labour in Burma (Myanmar): Forced labour after 2003 International Labour Conference". This report contains dozens of testimonies by victims of forced labour for the military. The witnesses were mostly used as porters (of arms, munitions, wood, supplies, etc.), on construction or maintenance sites of roads or bridges, or exploited in labour camps and paddy fields controlled by the army. The experiences of the witnesses included:

-  being requisitioned as a consequence of a military order directed to village heads in rural areas to provide villagers for unpaid labour for portering, working on construction sites and the maintenance of military camps (many provided copies of labour requisition orders);

-  being forced to participate in military training programmes, doing sentry duty or acting as guides;

-  being forced by military chiefs to comply with a system of enforced labour rotation whereby each family in a village must provide a certain number of family members each day, under the menace of reprisals or a fine. The requisitioned workers have to equip themselves with their own tools and provide the food necessary for their own subsistence for the duration of their work, which is mostly unknown.

In addition, witnesses report that the types of ill-treatment suffered include:

-  being deprived of food;

-  being systematically beaten when they collapsed through exhaustion or sought permission to rest;

-  in the most serious cases, reporting that porters incapable of walking due to a wound or extreme fatigue were purely and simply assassinated;

-  mutilations and violent deaths occurring during mine-clearing operations, with the persons equipped only with rakes.

The military are also said to commit other acts of violence, including: murders, rapes, torture, pillage, the intentional burning of habitations, the destruction of plantations and consumer goods, forced expropriations and expulsions, as well as confiscating and extorting money and goods under the pretext of various types of taxation.

22. The ICFTU also forwarded a document prepared by the Asian Legal Resource Centre, an NGO with general consultative status with the United Nations Economic and Social Council, and which is based in Hong Kong, reporting two cases of forced labour imposed upon civilians by the authorities. The document illustrates the manner in which the authorities endeavour to turn against those who refuse to comply with requisition orders. The first case concerns two inhabitants of Henzada (old name for Hinthada) Township, Ayeyarwady Division, who in July 2003 refused to perform sentry duty at the Buddhist monastery of Oatpone village. They were sentenced respectively to one month and six months of imprisonment under the Penal Code for intentional failure to furnish assistance to a public servant in the execution of his public duty (section 187) and the threat of injury to any public servant (section 189). They filed a case under section 374 of the Penal Code (penalizing the imposition of unlawful compulsory labour), but both complainants were dismissed by the Henzada Township Court. The authorities filed a counter-complaint for defamation (sections 499 and 500 of the Penal Code) and the two complainants were both subsequently sentenced to six months’ imprisonment on 7 October 2004. The second case concerns an inhabitant of Kawmhu Township, Yangon Division, who in April 2004 brought a complaint against the local authorities under section 374 of the Penal Code, and who had previously been threatened with legal action for failing to comply with instructions to work on a road in the neighbourhood. The local authorities then organized other villagers to depose that no one had been coerced to undertake the road construction and that the work in question had been carried out voluntarily. The ICFTU expresses the fear that the case may be decided against the complainant, in the same way as in the first case.

23. The other documents provided by the ICFTU include:

-  three other reports by the FTUB, entitled: "State-induced violence and poverty in Burma", dated June 2004; "Impact of US sanctions on the textile and garment industry in Burma" and "All-round impact of promotion of tourism on the entire community of Ngwe Saung area in Ayeyarwady Division, Burma", both dated 2004, and the testimony of a child soldier, dated 2 January 2004;

-  articles by various press agencies and human rights defence organizations reporting dozens of cases of forced labour, including the use of around 250 villagers from the Muslim minority in Rohingya in Maungdaw Township, Arakan State, to build houses for 130 families of Buddhist settlers from the centre of the country, and the requisitioning of 500 other villagers in June 2004 to build a bridge under the orders of the NaSaKa (border security forces). These articles refer to other cases of the exploitation of ethnic minorities by the authorities, such as the forced labour exacted from Naga villagers for the construction of tourist accommodation for the Naga New Year celebrations in Layshee (Sagaing Division) and the exploitation for the purposes of tourism of certain Salons (also called Mokens), forced to perform traditional dances (Tenasserim Division). Other cases reported include the abduction of civilians for use as human shields during a military operation carried out against the armed groups in southern Mon State and northern Tenasserim Division during the period December 2003-January 2004 and the rape of women villagers in southern Ye Township (Mon State) during the same period;

-  the authentic translation of the ruling in Criminal Regular Trial No. 111/2003 of the Yangon Northern District Court of 28 November 2003 sentencing nine persons to death for high treason, based on evidence for the charges which included alleged contacts between a number of them and the ILO and having received or communicated information relating to the activities of the Organization;

-  the authentic translation of the ruling of the Supreme Court in the same case, reducing the sentences of the accused to transportation for life for five of them and, for the four others, to three years’ imprisonment with rigorous labour (case No. 457/2003, Nay Win, Shwe Mann, Naing Tun and others v. Union of Myanmar). The ILO subsequently received, on 21 October 2004, the authentic translation of the ruling issued on 14 October 2004 by the Supreme Court on the application for special appeal in the same case. The sentences of the four accused who had been convicted on appeal to three years’ imprisonment with rigorous labour were reduced to two years’ imprisonment with rigorous labour, while that of Shwe Mann, convicted on appeal to transportation for life, was reduced to five years’ imprisonment with rigorous labour. Moreover, the Supreme Court found that references to contacts with the ILO contained in the ruling of the Yangon Northern District Court should be deleted from the judgement, as the Supreme Court indicated that "communication and cooperation with the ILO does not amount to an offence under the existing laws of Myanmar";

-  the second preliminary report of the Ad Hoc Commission on the Depayin Massacre, dated May 2004; and

-  two documents prepared by the Federation of Trade Unions Kawthoolei (FTUK) reporting dozens of other cases of forced labour, including two interviews with victims of forced labour dated 19 June 2004.

24. The Committee notes the new allegations of the forced recruitment of children by the armed forces contained in the documents supplied by the ICFTU and the report on the activities of the Liaison Officer a.i. submitted to the Governing Body in November 2004 (document GB.291/5/1). Among the cases brought to the attention of the Liaison Officer a.i., is one of a young person of 15 years of age who, according to the allegations, was recruited into the army and then escaped, before being arrested and convicted by a court martial to four years’ imprisonment for desertion.

25. The Committee recalls in this respect that it previously requested the Government to provide information on any investigation that may have been undertaken to ascertain that in practice no person under 18 is recruited into the armed forces and that it hoped that the Government, with the assistance of the ILO, would make every effort to carry out a thorough assessment of the extent of this practice and would take the necessary action to put an end to it.

26. With regard to programmes of military training and service, the Government indicates in its last report that it has established a Committee for Prevention against Recruitment of Minors, headed by the Secretary (2) of the State Peace and Development Council. While noting this information, the Committee observes, from a reading of the many documents in the file, that the recruitment of children to serve in army units is still current and that certain young persons have been convicted by military courts to sentences of imprisonment for desertion. The Committee urges the Government to bring an end to these practices and to enter into full and complete collaboration with the Liaison Officer a.i. in dealing with complaints that are brought to his attention, and to ensure that young persons who are victims of such abuses cannot in future be convicted by military courts.

27. In conclusion on this subject, the Committee notes that forced and compulsory labour continues to be prevalent in many areas of the country, and particularly in the border areas inhabited by ethnic minorities, in which there is a strong military presence. It notes with concern the many documents brought to its attention by the ICFTU and the cases followed by the Liaison Officer a.i., that demonstrate forcefully that the exaction of forced labour is far from disappearing in practice. It notes the Government’s statement concerning its determination to eliminate forced labour in the country; however, the Committee considers that this determination has not so far led to the achievement of the expected results. The Committee trusts that the Government, in keeping with its expressed intention, will significantly increase its efforts to bring a definitive end to forced labour, and urges the Government to pursue its cooperation with the ILO for this purpose. The Committee hopes that the Government will reply in detail concerning all the cases of forced labour reported by the ICFTU.

Imposition of the penalties established by the Penal Code in cases
of the illegal exaction of forced or compulsory labour

28. The Committee recalls that in its report the Commission of Inquiry urged the Government to take the necessary measures to ensure that the penalties established under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced, in conformity with Article 25 of the Convention. In the view of the Commission of Inquiry, this would require thorough investigation, prosecution and adequate punishment of those found guilty.

29. The Committee notes from the report submitted by the Liaison Officer a.i. to the Governing Body in November 2004 (document GB.291/5/1, paragraph 13 and Appendix II) that, for the first time, cases have been brought to the courts of Myanmar under section 374 of the Penal Code concerning the illegal exaction of forced labour. However, it notes that none of the six cases brought during the course of 2004 led to the initiation of proceedings, nor even to recognition of a situation of forced labour. In three cases, the courts rejected the cases on the grounds that there was no prima facie evidence of forced labour. Further, in two of the three cases which have been completed, the complainants were even sentenced to six months’ imprisonment for defamation and these persons had  already been imprisoned for refusing to carry out the forced labour. The three other cases were still ongoing at the time of the report (22 October 2004). Furthermore, the Liaison Officer a.i. indicates in his report that "two individuals were arrested after returning to their village following a visit to him in Yangon. During the visit, one of the individuals provided details on a direct complaint he had made to a court under section 374 of the Penal Code, concerning forced labour in Kawhmu Township (Yangon Division)" (document GB.291/5/1, paragraph 17).

30. The Committee notes that, although for the first time cases have been brought under section 374 of the Penal Code by individuals claiming to be victims of the exaction of forced labour, none of these cases has yet been found receivable. It notes that the fact that certain victims have been arrested after contacting the Liaison Officer a.i., or convicted to a sentence of imprisonment for defamation after bringing a case under section 374 of the Penal Code, creates a climate of fear which is likely to dissuade victims from turning to the courts. It hopes that the Government will make every effort to ensure that the victims of forced labour are in practice able to avail themselves of the provisions of section 374 of the Penal Code without risking prosecution for defamation and that they can freely contact the Liaison Officer a.i. without running the risk of being arrested or interrogated by the police forces. It hopes that the Government will provide information in its next report on the progress achieved in this field.

Joint Plan of Action

31. In its last observation, the Committee noted with interest that a Joint Plan of Action for the Elimination of Forced Labour Practices in Myanmar had been agreed upon on 27 May 2003 between the ILO and the Government. Although the Joint Plan of Action was welcomed by the Conference Committee on the Application of Standards during the discussion at the 91st Session of the International Labour Conference, the Conference Committee also observed that its debate was taking place in the context of recent events, and the resulting climate of uncertainty and fear, which "called seriously into question the will and ability of the authorities to make significant progress in the elimination of forced labour". The Committee of Experts notes that the situation has scarcely improved since then, particularly in the view of the fact that three persons have been convicted for high treason on grounds which include contacts with the ILO. Although the Supreme Court ruling on a special appeal commuted the death sentence which had been imposed on these persons in November 2003 by a court in Myanmar to sentences of imprisonment of two and five years and acknowledged the legality of contacts with the ILO, the Committee notes that the Workers’ group, the Employers’ group and many Government members of the Governing Body expressed regret at the continued detention of the persons concerned and called for their immediate release or pardon. The situation of these persons is a matter of great concern to the Committee. The Committee regrets that, under these conditions, the Joint Plan of Action cannot be implemented as envisaged. It notes the decision of the Governing Body to field a very high-level mission to evaluate the attitude of the authorities and assess their determination to continue their cooperation with the ILO (GB.291/5, Conclusions).

Concluding comments

32. The Committee notes once again with grave concern, that the recommendations of the Commission of Inquiry have still not been implemented: the provisions of the Towns Act, 1907, and the Village Act, 1908, allowing requisition of labour in violation of the Convention, have not been repealed; forced labour continues to be exacted in many areas of the country, in circumstances of severe cruelty and brutality; and no person responsible for the exaction of forced labour has been prosecuted or convicted under the relevant provisions of the Penal Code. The Committee expresses its strongest condemnation and urges the Government to demonstrate its expressed determination to eliminate forced labour and to take the necessary measures to ensure compliance with the Convention.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

1. Since 1999, the Committee has examined the measures taken by the Government in giving effect to the recommendations of the Commission of Inquiry appointed by the Governing Body to examine the observance by Myanmar of the Convention. In 1999 and 2000, two orders were issued to render the requisition of forced labour illegal and subject to penal sanction. Since then the ILO has been involved in a number of activities to follow up the recommendation of the Commission of Inquiry. Between May 2000 and February 2002, several technical cooperation missions were undertaken in Myanmar by a representative of the Director General. In September-October 2001, a High-Level Team visited Myanmar to conduct an assessment of the measures taken by the Government in regard to the application of the Convention. In March 2002, as recommended by the HLT, the Government agreed to the appointment of an ILO Liaison Officer in Myanmar in order to assist the Government to ensure the prompt and effective elimination of forced labour. A Liaison Officer ad interim was appointed in May 2002. Since October 2002 a permanent Liaison Officer has been functioning, and reports on the activities of the Liaison Officer, including her travels in the country and her discussions with the authorities, are presented at each session of the Governing Body. On 27 May 2003, the Government and the ILO reached agreement on a Joint Plan of Action for the Elimination of Forced Labour Practices in Myanmar.

2. In 2002, in concluding its observation, the Committee noted that some measures had been taken by the Government to disseminate the prohibition of forced labour and that discussions were under way between the ILO and the Government on a plan of action. The Committee, however, observed that in spite of the indications and rhetoric of the Government, none of the three recommendations of the Commission of Inquiry - namely that the relevant legislative texts be amended; that in actual practice no more forced or compulsory labour be imposed by the authorities, in particular the military; and that the penalties provided for by the Penal Code for the exaction of forced labour be strictly enforced - had so far been met.

3. The Committee takes note of the discussions in the Conference Committee on the Application of Standards in June 2003 (Provisional Record No. 24, Part three). It also notes the statements made by the representative of the Government in the Governing Body and at the Conference Committee, as well as the following reports and information supplied by the Government:

-  further progress report concerning the implementation of Convention No. 29, dated 4 February 2003;

-  further developments on Convention No. 29, dated 24 March 2003;

-  replies to comments made by the Committee of Experts, dated 30 May 2003 (received on 6 June 2003);

-  report on the application of Convention No. 29, received on 2 October 2003;

-  five letters addressed to the Liaison Officer by representatives of the Government in the Convention No. 29 Implementation Committee, including the representative of the Ministry of Defence, in October and November 2003, replying to questions raised in the Implementation Committee.

4. The Committee has also taken note of the following information:

-  the reports on "Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)", presented to the Governing Body at its 285th (November 2002), 286th (March 2003) and 287th (November 2003) Sessions, which include the reports of the Liaison Officer;

-  the discussions and conclusions of the Governing Body on these reports (GB.288/PV);

-  a communication dated 20 November 2003, in which the International Confederation of Free Trade Unions (ICFTU) submitted fresh documentation referring to the continuing recourse to forced labour in Myanmar. A copy of this communication was transmitted to the Government on 30 November 2003 for such comments it may wish to present.

5. As in previous years, the Committee will examine the observance of the Convention by the Government under three main parts: (i) the amendment of legislation; (ii) the measures taken to stop the exaction in practice of forced or compulsory labour and information available on actual practice; and (iii) the enforcement of penalties which may be imposed under the Penal Code for the exaction of forced or compulsory labour. The Committee shall then review the measures taken in regard to the Joint Plan of Action (iv).

I.  Amendment of legislation

6. In its report, the Commission of Inquiry had urged the Government to take the necessary steps to ensure that the Village Act, 1907, and the Towns Act, 1907, which confer local authorities wide powers to requisition labour and services in violation of the Convention, be brought into line with the Convention without further delay. In its 2001 observation, the Committee noted that, although the Village Act and Towns Act still needed to be amended, an "Order directing not to exercise powers under certain provisions of the Town Act, 1907, and the Village Act, 1907" (Order No. 1/99), as modified by an "Order Supplementary to Order No. 1/99" dated 27 October 2000, could provide a statutory basis for ensuring compliance with the Convention in practice, if given bona fide effect not only by the local authorities empowered to requisition labour under the Village and Towns Acts, but also by civilian and military officials entitled to call on the assistance of local authorities under the Acts.

7. The Committee notes that, as at the end of November 2003, the amendment of the Village and Towns Acts has still not been made. Noting the Government’s statement in its reply to the Committee’s comments dated 30 May 2003 that Order No. 1/99 and its supplementary order have the force of law and the Towns Act and the Village Act are no longer referred to, the Committee trusts that the Government will therefore have no difficulty in repealing the relevant provisions of these Acts, in order to bring the legislation fully into conformity with the Convention. Pending this, the Committee trusts that the Government will make every effort to ensure that the prohibition on forced labour contained in Order No. 1/99 and its supplementary order is strictly applied and enforced.

II.  Measures to stop the exaction in practice of forced
labour and information available on actual practice

A.  Measures to stop the exaction in practice of
forced or compulsory labour

8. In its recommendations, the Commission of Inquiry had stressed that besides amending the legislation, concrete action needed to be taken immediately to stop the imposition of forced labour in practice, in particular by the military. In the Commission’s view, this was all the more important since the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village or Towns Acts. In its previous observations, the Committee had identified four areas in which action needed to be taken by the Government in order to achieve this goal: issuing specific and concrete instructions to the civilian and military authorities; giving wide publicity to the prohibition of forced labour; making adequate budgetary provisions for the replacement of forced or unpaid labour; and monitoring the prohibition of forced labour.

9. Specific and concrete instructions. In its observations in 2001 and 2002, the Committee noted that, in the absence of specific and concrete instructions to the civilian and military authorities containing a description of the various forms and manners of exaction of forced labour, the application of the provisions adopted so far turns upon the interpretation in practice of the notion of "forced labour". This cannot be taken for granted, as shown by the various Burmese terms used sometimes when labour was exacted from the population - including "loh-ah-pay", "voluntary", or "donated" labour.

10. In its 2002 observation, the Committee took note of a Directive issued on 1 November 2000 by Secretary 1 of the State Peace and Development Council (SPDC) (Letter No. 4/Na ya ka U/Ma Nya) directing "the State and Divisional Peace and Development Councils to issue necessary instructions to the relevant District and Township Peace and Development Councils to strictly abide by the prohibitions contained in Order No. 1/99) and its supplementary order". The Committee notes that the reports of the Government and the statements made by representatives of the Government contain many references to "explanations", "instructions" and "directives" given at offices of the Peace and Development Councils at various levels and offices of the General Administration Department, the Department of Justice and the police forces and township courts, and to the guidance provided by the Field Observation Teams during their visits in the country. However, the Government has supplied no details on the contents of the explanations, instructions, directives or guidance, nor has it provided the text of any instruction or directive which contains details of the tasks for which the requisition of labour is prohibited or the manner in which the same tasks are to be performed without resorting to forced labour.

11. In its reply to the Committee’s observation dated 30 May 2003, the Government indicates that the Myanmar Police Force has issued further directives and explanations with regard to Order No. 1/99 and its supplementary order to police force personnel in order that they may be made more aware of their obligations to the public concerning the "full meaning of the use of forced labour", and provides a copy of Letter No. 1002 (3) /202/G4 "to prevent illicit summon on the requisition of forced labour", dated 27 October 2000 and signed by the Director-General of the Police Force. The Committee notes that this Letter again draws attention to the contents of Order No. 1/99 and its supplementary order, and indicates the procedure to be followed by police officers in dealing with complaints on forced labour, without explaining the kind of tasks which constitute forced labour or how these tasks should be performed.

12. Regarding the defence forces, the Committee notes, from the written reply given to the Liaison Officer by the representative of the Ministry of Defence in the Convention No. 29 Implementation Committee, the reference made to a letter of 2001 of the Office of the Minister of Defence "instructing that the orders be made comprehensive to the staff at the lower levels" in its main offices and directorates, and two letters of 1999 and 2000 and a telegram of 2001 issued by the Office of the Chief of Staff (Army) "to make personnel to the lowest level will follow orders explicitly". The Committee requests the Government to supply copies of these letters and telegram with its next report.

13. On the basis of the information available to the Committee, it appears that clear instructions are still required to indicate to all officials concerned, including members of the armed forces, both the kinds of practices that constitute forced labour and for which the requisition of labour is prohibited, and the manner in which the same tasks are henceforth to be performed. The Committee notes that in the September 2003 meeting of the Convention No. 29 Implementation Committee, it was pointed out to the Liaison Officer that there could be differences of opinion over whether certain practices constituted forced labour and that it was important to take into account the traditional customs of the country. The Liaison Officer offered to meet with a small group of the Implementation Committee to develop common concepts relating to the application of Convention No. 29 in the Myanmar context, the results of which could be reflected in a pamphlet for public distribution. The Committee hopes that with the assistance of the Liaison Officer, the necessary detailed instructions will be issued without delay, and that they will, inter alia, cover each of the tasks listed in paragraph 13 of its 2002 observation.

14. Publicity given to orders. The Committee notes from the information supplied by the Government that measures continue to be taken in order to make the prohibition of forced labour contained in Order No. 1/99 and its supplementary order widely known by all the authorities concerned and the general public. These measures include:

-  distributing and posting copies of the orders at various administrative levels throughout the country;

-  including information on Convention No. 29 in the monthly bulletin of the Ministry of Labour, which is widely circulated;

-  preparing a pamphlet on forced labour and Convention No. 29;

-  sending Field Observations Teams led by members of the Convention No. 29 Implementation Committee to various parts of the country, to make the local authorities and the public aware of the orders; and translating the orders into ethnic languages.

15. The Committee recalls that in its 2001 observation, it referred to an allegation made by the ICFTU to the effect that villagers had to forcibly buy the "green book" containing the text of the orders, or were forced to purchase the boards on which the orders had to be posted. The Committee takes note of the Government’s reply that according to the General Administration Department the "green books" were distributed free of charge, at no cost to anyone.

16. In its communication received in November 2002, the ICFTU also alleged that "in certain areas villagers had never heard of any orders from Rangoon to the effect that forced labour was now banned, and that many villagers interviewed in Shan State, Karenni State, Karen State, Pegu Division and Mandalay Division still had never heard of announcements or proclamations that forced labour practices should be ended". The Government has provided no answer to this allegation.

17. Regarding the translation of the orders into ethnic languages, the Committee notes that as at the end of November 2003, the orders had been translated and published in two dialects of the Kayin language, Kayah, Mon, Shan and Kachin, and copies of these translations have been communicated to the ILO. It hopes that the next report of the Government will contain copies of the translations into the four Chin dialects.

18. The Committee notes the statement contained in the Liaison Officer’s first report to the November 2003 session of the Governing Body, to the effect that "there is so far no indication that the translations have been distributed and displayed in the ethnic areas".

19. The Committee expresses the hope that the Government will continue its efforts to give the widest publicity to the prohibition of forced labour throughout the country, including in the remote areas where most of the allegations of continuing forced labour refer to. In particular:

(a)  As the measures taken until now appear to be addressed mainly if not exclusively to the civilian authorities, the Committee requests the Government in its next report to provide information on the measures taken or envisaged to make the members of the defence forces at all levels fully aware of the existing orders and of the sanctions for their violation. The Government is requested to provide copies of the information provided to the defence forces as well as information about meetings, workshops and seminars organized to disseminate the information to the defence forces.

(b)  As the Field Observation Teams of the Convention No. 29 Implementation Committee do not cover all the 16 states and divisions in the country, the Committee hopes that the work of the Implementation Committee will be extended to cover the whole country and that the next report will contain information on the progress made in this regard.

(c)  The Committee hopes that the pamphlet which has been in preparation since last year will be finalized soon, with the advice of the Liaison Office, and that a copy will be provided with the next report.

(d)  The Committee trusts that measures will be taken to ensure the distribution and display of the translations in the ethnic areas, which are those where the prevalence of forced labour practices appear to be the highest.

20. Budgeting of adequate means. In its recommendations, the Commission of Inquiry had drawn attention to the need to make adequate budgetary provisions to hire free wage labour for the public activities which are today based on forced and unpaid labour. In its report, the High-Level Team stated that it had received no information allowing it to conclude that the authorities had indeed provided for any real substitute for the cost-free forced labour imposed to support the military or public works projects. In its two previous observations, the Committee has pursued the matter and sought to obtain concrete evidence that adequate budgetary provisions exist to hire voluntary paid labour.

21. In its reply of 30 May 2003, the Government reiterates its previous statements that there is always a budget allotment for each and every project, with allocations which include the cost of material and labour. This has been the case for each project carried out by the Department for the Development of Border Areas. In addition, the Department under the Yangon City Development Committee, the Ministry of Construction and the Ministry of Home Affairs have issued instructions "to strictly follow the rules concerning the hiring of labour, forbidding any form of forced labour as regards the provisions for labour costs".

22. The Committee takes note of this statement. However, as the information available on actual practice shows that forced labour continues to be imposed in many parts of the country, in particular in those areas with a heavy presence of the army, the Committee can only conclude that the budgetary allocations that may exist are not adequate to make recourse to forced labour unnecessary unless the use of these allocations is not adequately controlled. In this regard, it draws attention to the Liaison Officer’s comment in her first report to the March 2003 session of the Governing Body that the dissemination of Order No. 1/99 and its supplementary order has not been sufficient to have a significant impact on the practice, as it has not been accompanied by other measures, such as providing alternative means to those currently imposing forced labour to carry out the tasks which is their responsibility to perform. The Committee reiterates the hope that adequate budgetary provisions will be made for the civilian and for the military authorities to allow them to carry out their tasks without using forced labour and that the next report will indicate the measures taken in this regard.

23. Monitoring machinery. The Committee takes note of the information supplied by the Government and the reports of the Liaison Officer on the activities carried out by the Convention No. 29 Implementation Committee in monitoring the forced labour situation and making the public aware of the orders prohibiting forced labour. Between December 2002 and November 2003, the Implementation Committee held three meetings with the Liaison Officer, in which a number of allegations of forced labour transmitted by the Liaison Officer were discussed. In these meetings, the newly appointed representative of the Ministry of Defence participated, which allowed certain issues concerning the use of forced labour by the army to be discussed. The Field Observation Teams of the Implementation Committee undertook frequent field trips in the country, to investigate allegations of forced labour and disseminate knowledge about the orders and reports on their findings were made to the Implementation Committee. In addition, the Liaison Officer received several written communications from the Implementation Committee, reporting on findings of the Field Observation Teams on the allegations transmitted by the Liaison Officer.

24. The Committee welcomes the dialogue which has developed between the Implementation Committee and the Liaison Officer. It notes however that all the investigations carried out by the authorities, including the FOTs, on allegations of forced labour have concluded that these allegations were unfounded. In this regard, it notes that as part of her proposals to the Government on a Joint Plan of Action, the Liaison Officer had made specific suggestions for a reformed system of inspection, which were not retained by the Government. The Committee also notes that following a request by the Liaison Officer, the Government agreed to let her accompany Field Observation Team on a field trip to Kachin State, in order to observe its methods of work. The Liaison Officer’s observation, as reported in her second report to the November 2003 session of the Governing Body, was that "the manner in which the team conducted its work, while appropriate for information dissemination, was not well suited to investigating allegations and that it would be difficult, if not impossible, to determine the veracity of allegations in such a manner". The Committee trusts that the Government will take steps to develop a fair and more effective procedure for investigating allegations of forced labour, in particular those involving the army, and that it will continue its dialogue with the Liaison Officer in this regard.

B.  Information available on actual practice

25. During its visit to Myanmar in October 2001, the High-Level Team had found that "although the orders prohibiting forced labour had been widely, if unevenly, distributed, the impact on the practice of forced labour was limited and there had been only a very moderate positive evolution since the Commission of Inquiry. The situation remained particularly serious in places with a large military presence, especially in border areas".

26. In its 2001 and 2002 observations, the Committee noted two communications of the ICFTU which contained a large number of allegations, many of them referring to the continued use by the military authorities of Burma of forced labour on a massive scale. In support of its claims, the ICFTU enclosed a large number of reports and other documents, totalling hundreds of pages, which often included interviews and precise indications of times, places, military battalions or companies involved, and the names of the commanders. The Committee had hoped that the Government would examine the allegations made by the ICFTU and supply detailed information on any action taken to prosecute all persons found responsible for ordering forced labour. The Committee notes that with the exception of two allegations, which were raised by the Liaison Officer in the Convention No. 29 Implementation Committee, the Government has provided no information in reply to the communications of the ICFTU. On the two allegations, which concerned the death of trade unionist U Saw Mya Than, while forced to work as a porter for the army, and the use of forced labour by TotalFinElf to build a highway between Kanbauk and Maung Ma Gan, the Government’s answers were that in both cases, no forced labour had been used and the allegations were aimed at tarnishing the image of the Government.

27. In her first report presented to the Governing Body in March 2003, the Liaison Officer stated her impression that "while there is probably less use of forced labour in central parts of Myanmar, the situation in areas near the Thai border where there is continuing insecurity and a heavy presence of the army, as well as in Northern Rakhine State, is particularly serious and appears to have changed little (since the HLT mission)". This impression is reiterated in her first report to the November 2003 session of the Governing Body, in which she states:

The Liaison Officer continues to receive credible reports of forced labour from various sources inside and outside the country, and fresh allegations have come to light during the recent trips to various parts of the country. The Liaison Officer continues to be concerned by the question of forced recruitment into the armed forces, including of children, on which no detailed response has been received from the authorities. Another matter which has come to the attention of the Liaison Officer is the current widespread and apparently systematic programme of military training for civilians, affecting very large numbers of people across the country since May. Trainees include government employees (for example, teachers), as well as local villagers and townspeople, who are required to participate in this training and in some cases also have to cover the cost of materials (such as bamboo sticks).

28. Regarding the forced recruitment of children into the army, the Committee has noted the answer provided by the representative of the Ministry of Defence in the Implementation Committee and repeated in his letter to the Liaison Officer, that the armed forces only recruit in accordance with the laws and regulations in force and since the Defence Services Act, 1959, provides that only those between the ages of 18 and 25 may be recruited voluntarily, there is no forced recruitment into the armed forces, and no young persons have been found to be recruited into the armed forces. The Committee requests the government to provide information on any investigation that may have been undertaken to ascertain that in practice no person under 18 is recruited into the armed forces. In view of the seriousness of the issue, the Committee hopes that the Government, with the assistance of the ILO, will make every effort to make a thorough assessment of the extent of this practice and will take necessary action to put an end to it.

29. Regarding the programmes of compulsory military training, the Committee notes from the letter of the representative of the Ministry of Defence to the Liaison Officer that "they are done as mentioned in the previous Constitutions saying that ... the State may in a particular part of the country or all over the country conduct military trainings"; "every citizen shall in accordance with law: (a) undergo military training; and (b) undertake military service for the defence of the State"; and "the basic trainings (are) conducted so as to protect the State from all forms of destructive elements". The Committee observes that the previous Constitutions are no longer in force; that in any event the obligation that they impose on citizens to undergo military training or service is "in accordance with the law"; and that the Defence Services Act, 1959, only provides for voluntary, and not compulsory, recruitment. It would appear therefore that the programmes of compulsory military training have no legal basis and constitute a form of forced or compulsory labour under the Convention. The Committee hopes that the Government will put an end to these programmes and that in its next report it will indicate the measures taken in this regard.

Current information

30. In a letter dated 19 November 2003, the ICFTU transmits information on actual practice coming from various sources and covering many parts of the country (Chin, Kayah, Kayin, Mon, Rakhine and Shan States and Ayeyarwady, Magway, Sagaing and Taninthayi Divisions) over the period September 2002 to October 2003. The ICFTU states that this information "ranges from extortion of money and goods in exchange for exemption from forced labour to violent death during forced portering and serving as ‘human minesweepers’ for the armed forces". The documents appended to the ICFTU letter include:

-  An August 2003 report by the Karen Human Rights Group containing translations of some 200 orders mostly from the Myanmar army to villages, requisitioning labour for various tasks as well as materials. There are also translations of more than 100 orders summoning village heads to meetings with the army, at which it is alleged that verbal demands for forced labour were made.

-  Documents from the Federation of Trade Unions of Burma (FTUB) containing 17 similar orders from the army to villagers requisitioning labour or materials.

-  Three reports from Forum Asia dated 2 December 2002, 29 May 2003 and 31 August 2003 which include numerous allegations of forced labour in Northern Rakhine State, in particular affecting the Muslim population.

-  Documents from the FTUB containing details of interviews with 73 villagers who allege they were requisitioned for forced labour. In addition, the documents contain details of interviews with a number of prisoners who had escaped after allegedly being sent to work as porters for the army.

-  A document dated February 2003 from the Pa’An Agriculture Workers Union concerning forced labour allegedly requisitioned from 12 villages for a road project in Kayin State.

The Committee requests the Government to examine the allegations of the ICFTU and the documents attached thereto and to supply detailed information on its investigations and any action taken thereupon to prosecute persons found responsible for ordering forced labour.

31. In summary, on the basis of the information at its disposal on actual practice, the Committee must conclude that while there may have been some decrease in forced labour since the report of the Commission of Inquiry in 1998, in particular for civil infrastructure work, forced labour continues to be exacted in many parts of the country. The situation is particularly serious in the border areas which are mostly inhabited by ethnic nationalities and where there is a heavy presence of the army. This clearly shows that in spite of the commitment to the elimination of forced labour expressed repeatedly by the Government the measures taken until now have not been sufficient to bring about rapid and significant progress, in particular as concerns the army.

III.  Enforcement

32. In its report, the Commission of Inquiry urged the Government to take the necessary steps to ensure that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced labour or compulsory labour be strictly enforced, in conformity with Article 25 of the Convention. This, in the Commission’s view, required thorough investigation, prosecution and adequate punishment of those found guilty.

33. The Committee notes, from the information provided by the Government, that although the Order supplementing Order No. 1/99 and the Directive dated 1 November 2000 from the Secretary 1 of the State Peace and Development Council provide for the prosecution under section 374 of the Penal Code of persons responsible for violating the prohibition on forced labour contained in Order No. 1/99, as of November 2003, no sanction has ever been imposed under section 374 of the Penal Code. Similarly, no complaint concerning the imposition of forced labour has been received until now, although procedures exist for such complaints to be filed, inter alia, at a police station in a court of law or at the Office of the Attorney-General.

34. The Committee is of the opinion that the lack of complaints and prosecutions under section 374 of the Penal Code cannot be taken as indicating that there is no forced labour. Rather, it casts doubt on the credibility of the existing complaint and investigation mechanism and on the real commitment of the Government to completely eliminate forced labour.

35. The Committee recalls that in order to overcome the feeling of fear and the lack of trust in the system of redress which in its view was the reason for the lack of complaints and prosecutions, the High-Level Team had suggested the appointment of 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 and with the required confidence of all parties concerned.

36. The Committee notes with interest that in the Joint Plan of Action agreed on 27 May 2003 between the Government and the ILO, the Government accepted the establishment of an independent Facilitator to receive complaints of forced labour and assist victims in obtaining redress under the national legislation. Under the Formal Understanding on the Facilitator, the Facilitator shall perform his/her functions in strict confidentiality and have free access to the complainant and witnesses and no measures of any kind shall be taken by the authorities against the complainants and witnesses. When seized with a prima facie case of subjection to forced labour, the Facilitator may seek an informal solution with the authority concerned, or transmit the complaint to the competent authority to initiate legal proceedings and take necessary action, and he/she shall be informed of the decisions reached. The Facilitator and his/her assistance and support shall be extended the facilities, assistance, protection and status necessary to carry out their function effectively and in full independence and impartiality. The services of the Facilitator will be available in the whole country and will be tested in the pilot region established in the Plan of Action.

37. The Committee considers that, if applied in good faith, the Formal Understanding on the Facilitator could be an important tool in assisting victims of forced labour to make complaints and obtain redress, and result in the prosecution and punishment of persons responsible for imposing forced labour. As indicated below, the Committee hopes that the Government will take the necessary steps to make it possible for the Understanding to be implemented as soon as possible.

IV.  Joint Plan of Action

38. Following the appointment of an ILO Liaison Officer in Yangon, the Director-General had suggested to the Minister for Labour the development of a plan of action capable of making a concrete and verifiable impact towards the complete elimination of forced labour. The Committee notes with interest that, as a result of the discussions which took place over the last year between the Liaison Officer and the authorities in Yangon and between representatives of the Director-General and representatives of the Government in Geneva, a Joint Plan of Action for the Elimination of Forced Labour Practices in Myanmar was agreed on 27 May 2003. The Plan consists of a plan of action proposed by the Government, with a number of work programmes covering, inter alia, dissemination of information and awareness-raising programmes on the prohibition of forced labour, the expansion of animal transportation as an alternative to the use of porters, and the work of Field Observation Teams; a Formal Understanding on the Facilitator, described in paragraph 36 above, and a Formal Understanding on a pilot region. The pilot region is a region where the prohibition of forced labour will be strictly enforced and where a number of activities, including a local road construction project, will be implemented with the technical assistance and support of the ILO. The designated region is the Myeik District, consisting of four townships in the Tanintharyi Division in the south of the country.

39. The Joint Plan of Action was discussed at the 91st Session of the International Labour Conference during the special sitting on Myanmar of the Committee on the Application of Standards (hereinafter called "Special Sitting"). On this occasion, a Government representative stated that the Joint Plan of Action was a breakthrough, a landmark agreement which was the outcome of a long process of continuous and intensive negotiations and recalled his Government’s determination and commitment to resolving the issue of forced labour and to implement it. The Conference Committee welcomed the Plan of Action as follows:

The Committee welcomed the fact that the Government and the ILO has agreed on 27 May 2003 on a Joint Plan of Action for the elimination of forced labour and expressed its support for this Plan. It also noted with interest that, on the basis of the suggestion made by the HLT, the Plan envisaged the designation of an independent Facilitator to assist victims of forced labour to obtain redress under national legislation. It was noted that the Facilitator would carry out his function throughout the country. Under the Plan of Action, the Government had undertaken to strictly enforce the prohibition on forced labour in the pilot region. While emphasizing that the implementation of the Plan of Action was without prejudice to the general obligation of the Government to put an end to forced labour in the whole of the country, the Committee felt that this Plan of Action, if it was applied in good faith, could enable tangible progress to be made in the elimination of forced labour and could open the way to more substantial progress. The Committee urged the Government to take all the measures required for this purpose.

40. At the same time, the Conference Committee noted in the Special Sitting that its debate was taking place at a moment when the climate of uncertainty and fear prevailing in the country as a result of recent events called seriously into question the will and ability of the authorities to make significant progress in the elimination of forced labour. The Committee expressed the view that:

... a climate of uncertainty and intimidation did not provide an environment in which the Plan of Action, and in particular the facilitator mechanism which it established, could be implemented in a credible manner. The Committee trusted that the Government would take the necessary measures to bring an end to this situation. The Committee hoped that the implementation of the Plan of Action would go ahead as soon as the Director General considered the conditions were met for its effective implementation.

41. The Committee shares the concern of the Conference Committee that a climate of fear and intimidation is not an environment where the Joint Plan of Action, and in particular the Understanding on the Facilitator, can be implemented in a credible manner. Taking note of the assurances given by the Minister for Labour in his meeting of 14 November 2003 with the Liaison Officer, as well as those contained in the statement of the representative of the Government at the November 2003 session of the Governing Body, that the Government is firmly committed to the Joint Plan of Action and is ready to go ahead with its implementation, the Committee trusts that the Government will shortly take the necessary steps to restore a climate which will make it possible for the Plan of Action to be implemented in an effective and credible manner.

42. To summarize, in the last three years, the Government, at the highest levels, has given repeated assurances of its intention to put an end to the widespread violations of the Convention which had been noted by the Commission of Inquiry in its report. As noted in the Committee’s observation, a number of steps have been taken in this direction, in particular, orders have been issued to prohibit the use of forced labour. These orders have been translated into six ethnic languages and measures have been taken to make them known to public officials and the general public. A mechanism has been established to promote the observance of the orders and to disseminate awareness of them. An intensive dialogue has developed between the ILO and the authorities, which has resulted in the establishment of a presence in the country in the form of an ILO Liaison Officer.

43. The Committee is bound to observe that the three main recommendations of the Commission of Inquiry are still to be implemented. In spite of the Government’s assurances of its good intentions, the measures taken until now have not brought about significant progress in actual practice. Forced labour continues to be exacted in many parts of the country, mainly by the army. No person responsible for imposing forced labour has ever been prosecuted or sentenced under the relevant provision of the Penal Code.

44. In view of the slowness of the progress, it could be hoped that the process of dialogue and cooperation which has developed between the ILO and the Government can offer a real chance of bringing about more rapid and concrete results. The Committee considers that the Joint Plan of Action agreed in May 2003 offers an opportunity for the Government, with the technical assistance of the ILO and the financial support of the international community, to move from procedural steps to substantive progress and to dispel the doubts that the current reality may cast about the seriousness of its commitment. The Committee can only express the hope that the Government will do its utmost to ensure the continuation of this process of dialogue and cooperation and will take all the necessary steps in the very near future to make it possible for the Joint Plan of Action to be implemented.

45. The Committee reminds the Government that in any event the obligation under the Convention to suppress the use of all forms of forced or compulsory labour remains its responsibility.

[The Government is asked to supply full particulars to the Conference at its 92nd Session.]

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

1. The Committee has noted the Government’s responses on the application of the Convention, including: reports received on 9 September 2002 and on 17 October 2002, communications dated 15 November 2002 and 18 November 2002, a report entitled "Developments concerning Convention No. 29" dated 18 November 2002, a report transmitted on 27 November 2002, and a supplementary progress report dated 27 November 2002. In examining compliance with the recommendations of the Commission of Inquiry established to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), the Committee has furthermore taken note of the following information:

-  the information submitted to, and the discussions held at, the International Labour Conference at its 90th Session (June 2002) (Provisional Record No. 28, Part Three);

-  the information submitted to the Governing Body of the ILO at its 285th Session in November 2002, including in particular the report on "Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)" (GB.285/4 and appendices), the presentation by the representative of the Government and the conclusions by the Governing Body (GB.285/PV);

-  a communication dated 14 October 2002 with which the International Confederation of Free Trade Unions (ICFTU) submitted to the ILO fresh documentation referring to the continuing massive recourse to forced labour by military authorities in Myanmar, a copy of which was transmitted to the Government on 8 November 2002 for such comments as it may wish to present on the matters raised therein.

2. Information available on the observance of the Convention by the Government of Myanmar will again be discussed under three main parts, dealing with: (i) the amendment of legislation; (ii) any measures taken by the Government to stop the exaction in practice of forced or compulsory labour and information available on actual practice; and (iii) the enforcement of penalties which may be imposed under the Penal Code for the exaction of forced or compulsory labour.

I.  Amendment of legislation

3. In paragraph 470 of its report of 2 July 1998, the Commission of Inquiry noted:

... that section 11(d), read together with section 8(1)(g), (n) and (o) of the Village Act, as well as section 9(b) of the Towns Act provide for the exaction of work or services from any person residing in a village tract or in a town ward, that is, work or services for which the said person has not offered himself or herself voluntarily, and that failure to comply with a requisition made under section 11(d) of the Village Act or section 9(b) of the Towns Act is punishable with penal sanctions under section 12 of the Village Act or section 9(a) of the Towns Act. Thus, these Acts provide for the exaction of "forced or compulsory labour" within the definition of Article 2(1) of the Convention.

The Commission of Inquiry further noted that the wide powers to requisition labour and services under these provisions do not come under any of the exceptions listed in Article 2, paragraph 2, of the Convention and are entirely incompatible with the Convention. Recalling that the amendment of these provisions had been promised by the Government for over 30 years, the Commission urged the Government to take the necessary steps to ensure that the Village Act and the Towns Act be brought into line with the Convention without further delay, and at the very latest by 1 May 1999 (paragraph 539(a) of the Commission’s report).

4. The Committee observes that, as at the end of November 2002, the amendment of the Village and Towns Acts sought by the Commission of Inquiry as well as the present Committee and promised by the Government for many years had still not been made, nor had any draft law proposed or under consideration for that purpose been brought to the knowledge of the Committee. In its previous observation, the Committee noted that legislative powers were exercised by the Government in June 2000 and February 2001 when it adopted the "Judiciary Law, 2000" and the "Attorney-General Law, 2001". The Committee once again expresses the hope that the Village Act and the Towns Act will at last be brought into conformity with the Convention.

5. In its observation in 2001 the Committee noted, however, that, although the Village Act and Towns Act still needed to be amended, an "Order directing not to exercise powers under certain provisions of the Town Act, 1907, and the Village Act, 1907" (No. 1/99), as modified by an "Order Supplementary Order No. 1/99" dated 27 October 2000, could provide a statutory basis for ensuring compliance with the Convention in practice, if given bona fide effect not only by the local authorities empowered to requisition labour under the Village and Towns Acts, but also by civilian and military officers entitled to call on the assistance of local authorities under the Acts. This, in the view of the Committee, called for further measures to be undertaken, as indicated by the Commission of Inquiry in its recommendations in paragraph 539(b) of its report.

II.  Measures to stop the exaction in practice of forced or compulsory labour and information available on actual practice

  A. Measures to stop the exaction in practice of forced or compulsory labour

6. In its recommendations in paragraph 539(b) of its report of July 1998, the Commission of Inquiry indicated that steps to ensure that, in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military, were:

... all the more important since the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or Towns Act. Thus, besides amending the legislation, concrete action needs to be taken immediately for each and every of the many fields of forced labour examined in Chapters 12 and 13 (of the Commission’s report) to stop the present practice. This must not be done by secret directives, which are against the rule of law and have been ineffective, but through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. Also, action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required.

7. Absence of specific and concrete instructions. In its observation in 2001, the Committee noted that, in the absence of specific and concrete instructions to the civilian and military authorities containing a description of the various forms and manners of exaction of forced labour, the application of the provisions adopted so far turns upon the interpretation in practice of the notion of "forced labour". This cannot be taken for granted, as shown by the various Burmese terms used sometimes when labour was exacted from the population - including "loh-ah-pay", "voluntary", or "donated" labour.

8. In its previous observation, the Committee noted that in its report the Government only referred to a directive issued on 1 November 2000 by the State Peace and Development Council (SPDC) "instructing all concerned authorities to strictly abide by the Orders issued by the Ministry of Home Affairs", i.e. Order No. 1/99 and its Supplementary Order. The Committee noted from the report of the High-Level Team (HLT) that, at the time of drafting its report (in October 2001), the HLT had only received three instructions in Burmese issued by various military commanders to units under their command. Two of these instructions did not contain any specifications either of the kinds of tasks for which the requisition of labour was prohibited nor the manner in which the same tasks were henceforth to be performed. The third instruction issued by the NaSaKa and dated 22 July 2001 provided another example of the blurring of the borderline between compulsory and voluntary labour and of action which in the last resort is limited to the issue of wage payment, contrary to the specific indications in paragraph 539(b) of the report of the Commission of Inquiry.

9. In the Government’s report received on 9 September 2002, the Government only refers to "explanations" of Order No. 1/99 and its Supplementary Order, mentioned in paragraph 5 above, that were made "at the offices of the Peace and Development Councils at various levels and also the offices of the General Administration Department throughout the country". The Government also indicates that the Orders were circulated to all ministries, including the Ministry of Defence, "for issuance of further directives to all units under its command". In its report transmitted on 27 November 2002, the Government indicates that "explanations" of the Orders were made at the offices of the Department of Justice and to the police forces and township courts. The Government has not supplied any further details about the "explanations" or the "further directives" referred to, nor has it made any further reference to the directive issued on 1 November 2000 by the SPDC, which it mentioned in its 2001 report.

10. The Committee notes the report "Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)" (ILO document GB.285/4 and addenda), which includes, in Appendix I, a summary of activities carried out by the ILO interim Liaison Officer. The summary, at paragraph 25 of Appendix I, refers to a meeting the interim Liaison Officer had on 23 August 2002 with the Implementation Committee "in order to review developments since the HLT visit [in September and October of 2001]". At that meeting, the Deputy Minister for Labour indicated that:

On two occasions since the visit of the HLT, a number of teams headed by directors in the Department of Labour had visited the field to assess the situation and explain the Orders to the people of the area. As was explained by another member of the [Implementation] Committee, however, these teams did not generally meet with local military commanders.

The Implementation Committee stated further that:

… in addition to being distributed on paper in English and Burmese, the Orders had been announced publicly by town criers, and meetings had been called at which verbal explanations had been given to the people in the language that they understood, including various ethnic languages. Regarding additional instructions, none had been issued since the visit of the HLT, but further briefings had been given to administrative officials called to Yangon.

11. In its report transmitted on 27 November 2002, the Government, in referring to visits by field observation teams in 2002, states only that during the visits the teams "left necessary guidance to the authorities". The Government has not supplied information in any greater detail regarding the content of the "explanations", "briefings", or "guidance" which it states it provided in conjunction with the dissemination of Order No. 1/99 and its Supplementary Order.

12. Before the ILO Governing Body at its 285th Session in November 2002, a representative of the Government stated that "necessary directives and instructions" were issued to all the ministries and departments concerned including the Ministry of Defence. The representative did not provide information in any greater detail.

13. Thus, accepting that the Government has undertaken some distribution of instructions, nonetheless, clear instructions are still required to indicate to all officials concerned, including officers at all levels of the armed forces, both the kinds of tasks for which the requisition of labour is prohibited, and the manner in which the same tasks are henceforth to be performed. The Committee hopes that the necessary detailed instructions will soon be issued, and that they will, inter alia, cover each of the following:

-  portering for the military (or other military/paramilitary groups, for military campaigns or regular patrols);

-  construction or repair of military camp/facilities;

-  other support for camps (guides, messengers, cooks, cleaners, etc.);

-  income generation by individuals or groups (including work in army-owned agricultural and industrial projects);

-  national or local infrastructure projects (including roads, railways, dams, etc.);

-  cleaning/beautification of rural or urban areas;

-  the supply of materials or provisions of any kind. The prohibition of requisition also must apply to demands of money (except where due to the State or to a municipal or town committee under relevant legislation) since in practice, demands by the military for money or services are often interchangeable.

14. Publicity given to orders. In its previous observation, the Committee noted the allegation made by the International Confederation of Free Trade Unions (ICFTU) in its communication dated 29 November 2001 that:

Indeed, many reports included herewith confirm that, in certain parts of the country at least, Order 1/99, its Supplementary Order and other relevant legal texts had been widely publicized. Reports abound in the ICFTU’s evidence of meetings organized in villages by the authorities to this effect, ahead of the ILO’s visit. As often as not, they had been run by senior SPDC officials dispatched from regional commands or even Rangoon.

… In actual fact, villagers frequently - if not always - had to pay the costs of these "information gatherings", such as gasoline or food and drink for visiting SPDC officials. As for the "Orders" themselves, they were publicized, quite cynically, through what can only be described as "forced distribution", whereby the so-called "Green Book" issued by the authorities on the subject had to be bought at 1,000 kyats or more per copy, with typically one to eight copies forcibly sold to each village; the villagers were also forced to purchase foam boards on which the "Orders" had to be posted.

15. The Committee invited the Government to comment on this allegation. The Committee notes that the Government has not commented on this allegation in any of its most recent reports and communications. Instead the Government reports in various documents, either on its actions or its expressed intentions in relation to publicity of orders:

-  In its report received on 9 September 2002, the Government states that Order No. 1/99 and its supplementing order have been circulated to all state organs and ministries including the Ministry of Defence.

-  In its report transmitted on 27 November 2002, the Government indicates that the Orders were posted at the offices of the Peace and Development Councils at the various levels, at the offices of the General Administration Department, the Department of Justice and with police forces and township courts.

-  In a communication of 15 November 2002 from the Director-General of the Department of Labour to the ILO Liaison Officer (Appendix to GB.285/4 (Add.2)) it was stated that, within a matter of days, translations of Order No. 1/99 and its Supplementary Order in Shan, Mon, and Kayin languages would be disseminated, and that translations into Kayah, Chin, and Kachin languages were in progress and would be published very soon. It also stated that a pamphlet on forced labour was being prepared in order to publicize the Convention. In a report dated 18 November 2002, the Government attached copies of what it states are translations of the Orders into the Mon, Shan, and Kayin languages.

-  In a report transmitted on 27 November 2002, the Government states, at paragraph 3, that the translated versions would be distributed in the very near future, that it now planned to translate the orders into Chin, Kachin, and Kayah, and that it was initiating necessary steps to publicize the provisions of the orders in pamphlet form and by brochure, press release, etc.

16. The Committee notes this information and trusts that the Government will honour the indications it has given in relation to publicity of ordes and report action on those items. The Committee also requests that the Government respond to the earlier allegation made by the ICFTU in its communication dated 29 November 2001 and in addition, to respond to the recent indications of the ICFTU in its communication dated 14 October 2002, that:

… in certain areas, villagers … indicate that the practice [of forced labour] has never stopped and they had, in fact, never heard of any "Orders" from Rangoon to the effect that forced labour was now banned. This is clearly indicated in a number of interviews by forced labour victims provided by the Federation of Trade Unions - Burma (FTUB) and EarthRights International (ERI).

17. A June 2002 report by EarthRights International, which is appended to the communication of the ICFTU, is based on scores of interviews with villagers of Shan State, Karenni State, Karen State, Pegu Division, Mandalay Division, and Tenasserim Division during the period from January to May 2002. It alleges that:

Few villagers are familiar with Order No. 1/99 … More villagers are aware of announcements that the practice of forced labour is to have ended, but many villagers still have never heard of such proclamations - formally or informally.

Further documentation supplied by the ICFTU also refers to:

… announcements regarding no more forced labour that had created confusion and fear among the population. This had resulted in an atmosphere that was not conducive to encouraging villagers to make complaints about ongoing forced labour. To date, ERI had yet to speak with a villager who knew how to make a complaint, much less one who had attempted to make a complaint about ongoing forced labour.

The Committee awaits the comments of the Government on these allegations.

18. Budgeting of adequate means. In its previous observation, the Committee noted 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 taken up by the HLT with the Myanmar authorities. 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. The HLT also inquired about any changes in budgetary arrangements. The Committee noted that it appeared from paragraphs 63 to 66 of the report of the HLT that at the time the report was finalized (29 October 2001), the HLT had not received information allowing it to conclude that the authorities had indeed provided for any real substitute for the cost-free forced labour imposed to support the military or for public works projects.

19. The Committee notes that the interim Liaison Officer (discussed below) took up the issue of allocating adequate budgetary resources to recruit voluntary wage labour with the Implementation Committee, during his meeting with that Committee on 23 August 2002. The summary of the meeting (GB.285/4, Appendix I, paragraph 25) states:

"Regarding evidence of budgetary provision for the payment of labour in public works projects, it was again explained that according to the Myanmar budgetary system there was no separate budget line for labour costs, and it was therefore not possible to provide such evidence."

20. The Committee notes the statement of the Government in paragraph 5 of the supplementary progress report transmitted on 27 November 2002, that:

As regards the budget allocation, … there is always a budget allotment for each and every project. The labourers and all persons employed under the respective projects can enjoy the prevailing wages rate of the respective areas. In the light of this, we are confident that we have fully implemented the measures regarding the budgetary allotments …

21. The Committee once again expresses the hope that the necessary detailed instructions will soon be issued and that, in the words of paragraph 539(b) of the Commission of Inquiry’s report, provision will also be made for "the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour".

22. Monitoring machinery. In its previous observation, the Committee noted that the Government referred to the creation of a Ministerial Level Committee and a National Level Implementation Committee which are not only to monitor the adherence to law by local authorities, members of the armed forces and other public service personnel, but also to ensure that the local authorities and the people at the grass-roots level are fully aware of the aforementioned Orders nationwide. The Government also referred to field observation teams (FOTs), respectively led by Heads of the Departments under the Ministry for Labour and comprising of responsible personnel from the General Administration Department, Myanmar police force and the Department of Labour, which it stated had been dispatched to various areas to investigate the situations relating to the practice of forced labour and to observe the public awareness of these Orders. The Government stated that these FOTs would make frequent visits to all areas within the country.

23. In its supplementary progress report transmitted on 27 November 2002, the Government again indicates that it has formed a Ministerial Committee with regard to ILO matters, headed by the Minister for Labour, and an Implementation Committee, headed by the Deputy Minister for Home Affairs, to monitor the implementation of Order No. 1/99 and its Supplementary Order. The Government also indicates, both in paragraph 6 of this report and in its previous report dated 18 November 2002, that the authorities have decided to include a high-ranking military official from the Office of the Inspector General under the Ministry of Defence to serve as a member of the Implementation Committee. The Committee notes that this inclusion would be a helpful and important addition to the Implementation Committee.

24. In its supplementary progress report transmitted on 27 November 2002, the Government refers to visits by FOTs headed by the members of the Implementation Committee to disseminate Order No. 1/99 and its supplemental order, and it refers to inquiries made by the teams about whether the Orders were made known to the public and whether there were any complaints on the exaction of forced labour. At paragraph 4 of its report, the Government indicates that a list of these visits was included in the attachment to the report. The attachment consists of a list of monthly visits by individual ministers to various townships and to visits by individual members of the Implementation Committee, most of which appear to have occurred in August, September, and October of 2002. At paragraph 7 of its report, the Government states that measures were carried out in the course of the visits, which included: determining first-hand the awareness and understanding of the Orders by the local populace; and assessing the effectiveness of the Orders and of measures taken by regional authorities at the state/division, township, and village tract levels.

25. ILO Liaison Officer. The Committee notes that, pursuant to an understanding concluded on 19 March 2002, the Government agreed to the appointment of an ILO Liaison Officer in Myanmar, as a step towards the establishment of a continued ILO presence in the country capable of contributing effectively to the objective of eliminating forced labour. The mandate of the Liaison Officer has been defined as covering all activities relevant to the objective of ensuring the prompt and effective elimination of forced labour in the country. Pursuant to this agreement, an interim Liaison Officer was appointed from 6 May 2002 to October 2002. During that time the interim Liaison Officer:

-  made initial contacts in May 2002 with government officials;

-  held a number of meetings with various parties during the period from June to October of 2002;

-  conducted a field trip to Tanintharyi Division (GB.285/4, paragraph 6).

On 7 October 2002, a permanent ILO Liaison Officer took up her appointment in Yangon and already has had a range of contacts and meetings with government officials and others during October and November of 2002 (GB.285/4 (Add.), paragraph 1).

26. The Government makes several comments in relation to the field trip undertaken by the interim Liaison Officer to the Tanintharyi Division in September 2002. In the Government’s report received on 17 October 2002, the Government refers to a visit by a FOT "composed" of government officials and the ILO interim Liaison Officer. The Government states that the report of the visit, submitted to the Ministry for Labour by the FOT, mentioned that "there are no instances of forced labour practices in the region, and that no legal action has to be taken against anyone under Penal Code 374 for infringement of Order No. 1/99." The Government has not supplied a copy of the report it refers to.

27. The report on Developments (GB.285/4) at paragraphs 13 and 14, also refers to an FOT which "consisted" of the ILO interim Liaison Officer, his assistant, and a senior official from the Ministry of Labour which visited the Tanintharyi Division, and indicates that the purpose of the trip "had not been to conduct investigations into specific allegations, but was rather to gain an impression of the root causes of the problem (such as the economic situation) and explore the possibilities for ILO assistance in solving the problem".

28. Whilst welcoming the interaction between the ILO Liaison Officer and the Implementation Committee and the FOTs, the Committee hopes that there will not be confusion between the differing roles and functions of the Liaison Officer from that of the government bodies. It is important that the FOT’s actions are not regarded as "comprising" the ILO Liaison Officer as the function and actions of each of the respective bodies should remain separate and not become blurred.

29. The Committee notes these indications given by the Government of its endeavours to abolish the practice of forced labour throughout the country. The Committee notes, however, that these endeavours need to be placed in the context of the absence of specific and concrete instructions as well as the lack of budgetary allocations for the replacement of forced and unpaid labour.

  B. Information available on actual practice

30. In its previous observation, the Committee took note of the "Findings as regards the impact on the realities of forced labour of the steps taken to implement the Orders", set out in paragraphs 54 to 58 of the October 2001 report of the HLT. The Committee also noted the analysis by the HLT in paragraphs 59 to 62 of its report, in which it identified the obstacles to the more effective eradication of forced labour in Myanmar, particularly the "self-reliance" policy of the army, the uncertainty as regards substitute financial/practical arrangements, and institutional obstacles.

31. The Committee, in its previous observation, also noted the communication of the ICFTU dated 29 November 2001, which included allegations that the military authorities of Burma had continued to resort to forced labour on a massive scale. In support of its claims, the ICFTU enclosed nearly 30 reports and other documents, totalling over 100 pages, and which often included precise indications of time and place, any military battalions or companies involved, and the names of the commanders. The Committee hoped that the Government would examine the indications given by the ICFTU and supply detailed information on any action taken thereupon, as well as upon the report of the HLT, to prosecute all persons found responsible for ordering forced labour, and that it would supply full information on the action taken. In its latest reports, the Government has not supplied the information requested by the Committee.

32. The Government’s view. In its earlier report on the application of the Convention transmitted on 30 September 2001, the Government states that the elimination of forced labour "will be the main priority concern of the Government". Before the ILO Governing Body at its 285th Session in November 2002, the Government representative stated that, in comparing the situations in 2000 and 2001 to the one in November 2002, one would definitely say that improvement and progress in Myanmar has been made over the years, but he did not explain in specific terms the improvement or progress he considered had been made. In its recent report transmitted on 27 November 2002, the Government states that the Implementation Committee "will carry out its endeavours to eradicate forced labour". Thus, the Government still gives no indications as to the progress and results so far achieved.

33. Reports on meetings of ILO liaison officers and government officials. The Committee notes that the report on developments (GB.285/4) refers to a number of communications between the Liaison Officers and government officials on a range of issues including:

-  A meeting with the Minister for Home Affairs on 1 July 2002 concerning alleged abduction of teenagers in Yangon who were said to have been forced to work as porters, which was subsequently a matter for discussion by the ILO Governing Body at its 285th Session in November 2002 (GB.285/PV).

-  A letter dated 24 July to the Minister for Labour (reproduced in GB.285/4, Appendix V) and a subsequent meeting on 30 July 2002, in which the interim Liaison Officer drew attention to specific allegations of forced labour contained in a report by Amnesty International (dated 17 July 2002 entitled "Myanmar: Lack of security in counter-insurgency areas"), and recommended that the Implementation Committee dispatch teams to the various areas to start investigating these allegations as well as also investigating other allegations of a worsening forced labour situation in parts of northern Rakhine State.

-  A letter dated 4 October 2002 from the interim Liaison Officer to the Implementation Committee giving the details of a complaint (without identifying the source), that vehicle owners were being requisitioned along with their vehicles to transport troops and supplies in the Kyaikto area as well as work on the construction of an artillery base, and requesting that the Committee investigate this matter urgently and inform the ILO of the result.

-  A meeting with the Implementation Committee on 23 August 2002 at which the interim Liaison Officer was briefed on progress that had been made since the last meeting in May. The Implementation Committee indicated that it was aware of various allegations of forced labour, including those contained in the report by Amnesty International, but stated there was no information from the field about any such cases and it considered that most of the allegations were exaggerated or had been fabricated by expatriate groups, but it would, however, take note of the point made in the report of the ILO HLT and look into the situation in remote areas.

-  A meeting with the Implementation Committee on 9 November 2002, when the Liaison Officer was able to follow up on the allegations transmitted by the interim Liaison Officer in letters dated 23 July, 7 August, and 4 October of 2002. The Committee briefed the Liaison Officer on the various places in the country that its members had travelled to in order to disseminate information and learn about the situation on the ground. As regards the specific allegations, the Implementation Committee indicated that the situation in northern Rakhine State had been thoroughly investigated, and the allegations had been found to be false, as had the allegations concerning requisition of vehicles in Mon State. No investigations had been made of the Amnesty International allegations, or the allegations relating to the construction of an artillery base in Mon State. The Liaison Officer stressed the need for written reports of such investigations, indicated that the information provided by the Implementation Committee concerning northern Rakhine State was not consistent with a separate response given by the authorities to the United Nations High Commissioner for Refugees (UNHCR) on the same issue, and also raised a number of new allegations that had been communicated which she indicated the Committee should investigate. These new allegations, some details of which had been communicated to the Implementation Committee by the Liaison Officer in advance of the meeting, related to the forced recruitment of child soldiers, the killing of a trade unionist whilst being forced to work as a porter, a number of other specific allegations contained in information recently submitted to the Committee of Experts by the ICFTU, as well as information on alleged forced labour in two towns in Bago Division. The Liaison Officer transmitted further details of these allegations to the Implementation Committee in a follow-up letter dated 14 November.

-  A meeting with the Minister for Foreign Affairs on 12 November 2002, at which the Minister indicated that the authorities had no policy of using forced labour, although they realized that the practice may be continuing in remote areas and they understood the need for prosecution of offenders.

-  A meeting with Secretary-1 of the State Peace and Development Council (SPDC) on 14 November 2002, at which the Secretary stated that the authorities did not condone forced labour and had given clear instructions prohibiting it, although it was possible that such practices still occurred in remote areas. The Liaison Officer stressed the need to improve the existing system for investigating allegations and to find a way to investigate allegations concerning the army.

34. The addendum to the report on developments refers to a meeting of the Liaison Officer on 30 October 2002 with Daw Aung San Suu Kyi, the General-Secretary of the National League for Democracy (NLD). According to the report:

Daw Aung San Suu Kyi welcomed the appointment of an ILO Liaison Officer in Yangon, and hoped that the NLD would have regular contact with the Liaison Officer. She felt that while substantial progress on the forced labour issue ultimately required progress in the reconciliation process, the ILO might nevertheless be able to bring about improvements in some areas. The NLD had noted some decline in the use of forced labour, but also had information on continued recourse to the practice, including cases that she had come across herself.

35. The Committee welcomes the dialogue which the Government is having with the ILO Liaison Officer and hopes that the Government will rigorously carry out investigations into the allegations indicated by the Liaison Officer and will provide written reports including any prosecutions undertaken to enforce Order No. 1/99. In this way the Government may be able to demonstrate that it is truly implementing its expressed commitment to eliminate forced labour in the country.

36. The ICFTU communication. In its communication dated 14 October 2002, the ICFTU indicated that the information supplied therewith covers roughly the period October 2001 to September 2002. This information from a number of sources indicates very serious ongoing allegations related to forced labour. The communication describes cases from, among others, Chin State, Shan State, Mon State, Karen State, Arakan State and Irrawaddy and Tenasserim Divisions. The ICTFU stated that based on this information, it:

…considers that forced labour continues to be imposed in Burma by military and civilian authorities alike and that this forced labour is regularly, if not always, accompanied by egregious violations of human rights, including child labour, murder, assassination, torture, rape, beatings, looting or confiscation of property, denial of food, medical treatment, rest and shelter and many other violations … All available evidence in fact clearly demonstrates that, after the ILO’s High-Level Team left the country in October 2001, forced labour has fully resumed in all parts of the territory previously concerned by this practice.

37. The ICFTU pointed out that its communication was supported by numerous documents, including scores of interviews of forced labour victims. It stated:

Our evidence, totalling over 350 pages, describes, as always, hundreds of incidents of forced labour, involving thousands of victims and is supported by hundreds of written "forced labour orders". Most of the forced labour is for the direct benefit of the army, such as construction and maintenance of camps, barracks, fences and other army installations, forced labour on army agricultural property (mostly confiscated earlier from civilians). Part of it also concerns forced labour on or in connection with industrial projects operated by foreign companies. One report describes forced cultivation of opium, imposed by the army on the civilian population in Shan State.

38. The documents appended to the communication of the ICFTU include:

-  ICFTU documentation concerning alleged murder by army elements in August 2002 of U Saw Mya Than, an official of the FTUB (Federation of Trade Unions - Burma) and the KEWU (Kawthoolei Education Workers Union), who had been forcibly recruited as a porter for the army’s Light Infantry Battalion (LIB) No. 588, led by one Major Myo Hlaing. The ICFTU considered that the role of U Saw Mya Than as a trade union official and human rights activist was directly linked to his forcible recruitment as a porter and subsequent murder by the army (paragraph 3).

-  A situation report from Kya Inn-Seik Gyi and Kawkereik Townships and Dooplaya District, in Karen State based on interviews conducted with villagers, which details specific allegations involving the exaction of forced labour by SPDC soldiers from Division 88.

-  The June 2002 report by EarthRights International (ERI), "We are not free to work for ourselves: Forced labor and other human rights a in Burma (January 2002-May 2002)", based on 77 interviews concerning the practice of forced labour, conducted with villagers of Shan State, Karenni State, Karen State, Pegu Division, Mandalay Division, and Tenasserim Division during the period from January to May of 2002. The allegations in the report include findings that during that period, portering and other forms of forced labour continued in circumstances involving grave human rights abuses, that few villagers were familiar with Order No. 1/99, and that the use of fees to extort money continued to increase. The report included a very concerning allegation that the aftermath of Order No. 1/99 may have made the practice of forced labour more insidious and difficult to eradicate in the future. For example, ERI indicated that it found: efforts by the military authorities to "document" that forced labour had ended by pressuring villagers to give false testimony in a variety of forms that the practice had ended despite its continuance; threats of retribution by military commanders and soldiers, including the threat of being killed, if villagers told others that forced labour was continuing; changes in vocabulary surrounding forced labour in some areas, such as the use of the "helper" (a-ku-ah-nyi) instead of "forced labour" (loy-ah-pay); payments that now accompanied a few cases of forced labour, but villagers were still not able to refuse to work.

-  Excerpts from an October 2002 report by the Documentation and Research Centre of the All Burma Students’ Democratic Front, which includes allegations of forced labour in Chin State, Irrawaddy Division, Rakhine State, Shan State and Tenasserim Division.

-  Excerpts from the Narinjara News concerning allegations of forced labour in Rakhine State.

39. The ICFTU documentation included a further supplement to the October 2001, namely a report of EarthRights International "More of the same: Forced labor continues in Burma". The report of EarthRights concerns alleged forced labour along the Yadana and Yetagun pipelines including allegations involving:

-  military units providing security for two natural gas pipeline projects using conscripted forced labour and portering of villagers for construction or repair of military camps/facilities; national or local infrastructure project (including clearing roads, building bridges, etc.) in relation to the provision of military security;

-  allegations that the consortiums which operate these pipelines which include TotalFinaElf (formerly Total) of France and Unocal of the United States, Premier Oil of the United Kingdom, use the Burmese military to provide security for their projects despite specific knowledge that the military has used and would continue to use forced labour;

-  allegations that in about April 2002, civilians in at least 16 villages in Tenasserim Division (southern Burma) were forced to undertake construction work on a road between Kanbauk and Maung Ma Gan.

The documents appended to the ICFTU communication also included a copy of The Mon Forum (Issue No. 7/202, 31 July 2002), a publication of the Human Rights Foundation of Monland, in southern Burma, which includes similar allegations in relation to forced labour used in relation to the natural gas pipeline projects.

The Office has received correspondence from TotalFinaElf dated 31 October 2002 essentially denying the accusations.

40. The Committee requests the Government to examine the observations of the ICFTU which are specifically detailed in its report and attachments and supply detailed information on its investigations and any action taken thereupon to prosecute persons found responsible for ordering forced labour and for any concomitant crimes.

III.  Enforcement

41. In paragraph 539(c) of its recommendations the Commission of Inquiry urged the Government to take the necessary steps to ensure:

... that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced labour or compulsory labour be strictly enforced, in conformity with Article 25 of the Convention. This requires thorough investigation, prosecution and adequate punishment of those found guilty.

42. In its observation published in 2001, the Committee had noted that point 4 of the directive dated 1 November 2000 from the State Peace and Development Council to All State and Divisional Peace and Development Councils (referred to by the Government in its 2001 report), provides for the prosecution of "responsible persons" under section 374 of the Penal Code, and that a similar clause is included in point 3 of an instruction dated 27 October 2000, addressed by the Director-General of the Police Force to all units of the police force.

43. The Committee again observes that no action under section 374 of the Penal Code has been brought to the knowledge of the Committee and that the report by the Government of asserted administrative action is inadequately documented and in any event does not fulfil the Convention requirements.

44. In its communication dated 14 October 2002, the ICFTU, in commenting on allegations demonstrating that forced labour had fully resumed following the visit by the High-Level Team in October 2001, stated:

Hence, in certain areas, villagers complain that forced labour has resumed with the same intensity, irrespective of Order No. 1/99 and Supplementary Order to No. 1/99, while in others, villagers indicate that the practice has never stopped …

… Moreover, many incidents demonstrate clearly that field commanders and other army officers have only contempt for villagers’ pleas to be spared from forced labour on the grounds of Order No. 1/99 and its Supplementary Order. Hence, in Kyaik Don (Dooplaya District, Karen State), the Commander Ohn Myint, in charge of army Division 88, is quoted in one of our reports as saying: "If some of you do not agree and are not satisfied with my arrangements for requesting villagers to work for us, you can submit it or inform about it to media if you dare. I am General Khin Nyunt’s cousin".

The Committee requests the Government to comment on these matters, indicating in particular how any investigations into the allegations are being conducted, by the military themselves or by the judiciary, and any measures taken to protect from reprisals both witnesses having testified, and victims of forced labour seeking redress.

The Committee also requests the Government to give consideration to the establishment of the Office of Ombudsman or similar mechanism having the mandate and the necessary means to receive complaints of forced labour and conduct investigations as suggested by the HLT in 2001.  The Government may wish to have dialogue with the Liaison Officer on this issue.

*  *  *

45. In summary, the Committee notes the following namely:

-  measures recently announced by the Government which include the translation of Order No. 1/99 and its Supplementary Order into Shan, Mon, and Kayin languages;

-  impending translation of the Orders into Kayah, Chin, and Kachin languages;

-  the intent to disseminate these translated versions;

-  the expansion of the Implementation Committee to include a high-ranking military official from the Office of the Inspector General under the Ministry of Defence;

-  the preparation of a pamphlet on forced labour in order to publicize the Convention;

-  the indication of the Government in paragraph 8 of its report dated 27 November 2002 that "an action plan calling for more effective and enforced measures to be adopted will be coordinated with the ILO Liaison Officer".

46. Whilst these actions are to be commended, at the same time the Committee recalls that the ILO Governing Body, at its 285th Session in November 2002 (GB.285/PV), welcomed the words of the Government but awaited the concrete action that must follow, and that the action it required of the Government is the eradication of forced labour, the bringing to justice of those responsible for perpetrating the acts of forced labour, and changing the legal process to give effect to the foregoing.

47. The Committee indicates that in spite of the indications and rhetoric of the Government, none of the three recommendations formulated by the Commission of Inquiry and accepted by the Government have so far been met. Despite longstanding promises, as well as the Government’s assured good will, the Village Act and Towns Act have not yet been amended. While Order No. 1/99, as supplemented, has been widely publicized, by itself the Order has not stopped the exaction of forced labour, in particular by the military. There is no indication that the necessary specific and concrete instructions and budgetary provisions have been adopted or even prepared with a view to effectively replacing forced labour by offering decent wages and employment conditions to freely attract any workers needed. Finally, there is no indication that any person responsible for the exaction of forced labour and often concomitant crimes was sentenced or even prosecuted under section 374 of the Penal Code or any other provision, in conformity with Article 25 of the Convention.

[The Government is asked to supply full particulars to the Conference at its 91st Session.]

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

1. The Committee has noted the Government’s reports on the application of the Convention. In examining compliance with the recommendations of the Commission of Inquiry established to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), the Committee has furthermore taken note of the following information:

- the information submitted to, and the discussions held at, the International Labour Conference at its 89th Session, (June 2001) (Provisional Record No. 19, Part Three);

- the information submitted to, and the discussions held in, the Governing Body of the ILO at its 280th Session in March 2001 (reproduced in Provisional Record No. 19, Part Three, of the 89th Session of the International Labour Conference);

- the information submitted to the Governing Body of the ILO at its 282nd Session in November 2001, including in particular the report of the High-Level Team (HLT) on "Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)" (GB.282/4 and Appendices), the presentation by the representative of the Government, and the conclusions by the Governing Body (GB.282/4/2);

- the resolution adopted by the United Nations Commission on Human Rights at its 57th Session (March-April 2001) on the situation of human rights in Myanmar (UN document E/CN.4/RES/2001/15);

- the interim report prepared by Paulo Sergio Pinheiro, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, dated 20 August 2001 (UN document A/56/312) and his statement made on 9 November 2001 to the 56th Session of the General Assembly;

- a briefing on the ILO Governing Body meeting of November 2001 given on 19 November 2001 by the Myanmar Ministry of Foreign Affairs and reported the following day in "The New Light of Myanmar" and by "Reuters";

- a communication dated 29 November 2001 with which the International Confederation of Free Trade Unions (ICFTU) submitted to the ILO fresh documentation referring to the continuing massive recourse to forced labour by military authorities in Myanmar, a copy of which was transmitted to the Government for such comments as it may wish to present on the matters raised therein.

2. Information available on the observance of the Convention by the Government of Myanmar will again be discussed in three parts, dealing with: (i) the amendment of legislation; (ii) any measures taken by the Government to stop the exaction in practice of forced or compulsory labour and information available on actual practice; and (iii) the enforcement of penalties which may be imposed under the Penal Code for the exaction of forced or compulsory labour.

I.  Amendment of legislation

3. In paragraph 470 of its report of 2 July 1998, the Commission of Inquiry noted:

… that section 11(d), read together with section 8(1)(g), (n) and (o) of the Village Act, as well as section 9(b) of the Towns Act provide for the exaction of work or services from any person residing in a village tract or in a town ward, that is, work or services for which the said person has not offered himself or herself voluntary, and that failure to comply with a requisition made under section 11(d) of the Village Act or section 9(b) of the Towns Act is punishable with penal sanctions under section 12 of the Village Act or section 9(a) of the Towns Act. Thus, these Acts provide for the exaction of "forced or compulsory labour" within the definition of Article 2(1) of the Convention.

The Commission of Inquiry further noted that the wide powers to requisition labour and services under these provisions do not come under any of the exceptions listed in Article 2, paragraph 2, of the Convention and are entirely incompatible with the Convention. Recalling that the amendment of these provisions had been promised by the Government for over 30 years, the Commission urged the Government to take the necessary steps to ensure that the Village Act and the Towns Act be brought into line with the Convention without further delay, and at the very latest by 1 May 1999 (paragraph 539(a) of the Commission’s report).

4. The Committee observes that by the end of November 2001, the amendment of the Village and Towns Acts sought by the Commission of Inquiry as well as the present Committee and promised by the Government for many years had not yet been made, nor had any draft law proposed or under consideration for that purpose been brought to the knowledge of the Committee. The Committee notes from paragraph 47 of the report of the HLT that legislative powers were exercised by the Government in June 2000 and February 2001 when it adopted the "Judiciary Law, 2000" and the "Attorney-General Law, 2001". The Committee again expresses the hope that the Village Act and the Towns Act will at last be brought into conformity with the Convention.

5. In its previous observation, the Committee noted that although the Village Act and Towns Act still needed to be amended, an "Order Directing Not to Exercize Powers Under Certain Provisions of the Town Act, 1907, and the Village Act, 1907" (No. 1/99), as modified by an "Order supplementing Order No. 1/99" dated 27 October 2000, could provide a statutory basis for ensuring compliance with the Convention in practice, if given bona fide effect not only by the local authorities empowered to requisition labour under the Village and Towns Acts, but also by civilian and military officers entitled to call on the assistance of local authorities under the Acts. This, in the view of the Committee, called for further measures to be undertaken, as indicated by the Commission of Inquiry in its recommendations in paragraph 539(b) of its report.

II.  Measures to stop the exaction in practice of forced or compulsory
  labour and information available on actual practice

  A.  Measures to stop the exaction in practice of forced or compulsory labour

6. In its recommendations in paragraph 539(b) of its report of July 1998, the Commission of Inquiry indicated that steps to ensure that in actual practice no more forced or compulsory labour be imposed by the authorities, in particular the military, were:

… all the more important since the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or Towns Act. Thus, besides amending the legislation, concrete action needs to be taken immediately for each and every of the many fields of forced labour examined in Chapters 12 and 13 [of the Commission’s report] to stop the present practice. This must not be done by secret directives, which are against the rule of law and have been ineffective, but through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. Also, action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required … .

7. Absence of specific and concrete instructions. In its previous observation, the Committee noted that in the absence of specific and concrete instructions to the civilian and military authorities containing a description of the various forms and manners of exaction of forced labour, the application of the provisions adopted so far turns upon the interpretation in practice of the notion of "forced labour". This cannot be taken for granted, as shown by the various Burmese terms used sometimes when labour was exacted from the population - including "loh ah pay", "voluntary" or "donated" labour. The need for clarity on the point was underscored by the Government’s recurrent attempts to link the pervasive exaction of labour and services by mainly military authorities to merit which may be gained in the Buddhist religion from spontaneously offered help. The Commission of Inquiry recalled in paragraph 539(c) of its report that "the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government’s statements" was "all the more likely to occur in actual recruitment by local or military officials".

8. In its report on the application of the Convention, the Government only refers to a directive issued on 1 November 2000 by the State Peace and Development Council (SPDC) "instructing all concerned authorities to strictly abide by the Orders issued by the Ministry of Home Affairs", i.e. Order No. 1/99 and its supplementary order, mentioned in paragraph 5 above. The Committee notes from the report of the HLT that it:

... requested on a number of occasions to be provided with authoritative translations of any additional instructions addressed to any authority, including the military. At the time of drafting its report, [in October 2001] the HLT had only received three instructions in Burmese issued by various military commanders to units under their command. Official translations of these orders have been requested but not yet received. On the basis of unofficial translations, the HLT understood that two of these orders simply reproduced the text of the order issued by Secretary-1 dated 1 November 2000. They did not contain any specifications either of the kinds of tasks for which the requisition of labour was prohibited nor the manner in which the same tasks were henceforth to be performed. The third instruction issued by the NaSaKa and dated 22 July 2001 re-stated the general prohibition on requisitioning of forced labour contained in the Orders but added that if recourse to forced labour was necessary, payment should be made accordingly.

The third instruction thus provides another example of the blurring of the borderline between compulsory and voluntary labour, referred to in paragraph 7 above, and of action which in the last resort is limited to the issue of wage payment, contrary to the specific indications in paragraph 539(b) of the report of the Commission of Inquiry, quoted in paragraph 6 above.

9. Thus, clear instructions are still required to indicate to all officials concerned, including officers at all levels of the armed forces, both the kinds of tasks for which the requisition of labour is prohibited, and the manner in which the same tasks are henceforth to be performed. The Committee hopes that the necessary detailed instructions will soon be issued, and that they will inter alia cover each of the following:

-           portering for the military (or other military/paramilitary groups, for military campaigns or regular patrols);

-           construction or repair of military camp/facilities;

-           other support for camps (guides, messengers, cooks, cleaners, etc.);

-           income generation by individuals or groups (including work in army-owned agricultural and industrial projects);

-           national or local infrastructure projects (including roads, railways, dams, etc.);

-           cleaning/beautification of rural or urban areas;

-           the supply of materials or provisions of any kind. The prohibition of requisition also must apply to demands of money (except where due to the State or to a municipal or town committee under relevant legislation) since in practice, demands by the military for money or services are often interchangeable.

10. Publicity given to orders. While the specific and concrete instructions called for by the Commission of Inquiry appear not yet to have been adopted, the Government indicates in its report that Order No. 1/99 and its supplementing order and the Directive of the SPDC of 1 November 2000 (see paragraphs 5 and 8 above) have been circulated to all state organs and ministries including the Ministry of Defence, and to all local administrative authorities down to the Ward and Village Tract Peace and Development Councils, and that the Orders have also been publicly circulated in the monthly Myanmar Gazette to inform the entire population in a formal manner, which is the normal procedure in Myanmar for all laws, byelaws, orders etc. issued by the Government.

11. It appears from the report of the HLT that Order No. 1/99 and its supplementary order, referred to in part 5 above, were in general given considerable publicity in the period preceding the visit of the HLT, including their posting in English and Burmese on the noticeboards of Village Peace and Development Council (VPDC) offices and other public offices, and through large numbers of meetings arranged by various authorities to inform both the general population and administrative officials of the content of the Orders. Copies of the Orders have also been distributed to members of the military, the NaSaKa and the police force. The HLT however noted that there was considerable geographic variation in the dissemination of the Orders as well as in the time frame in which this dissemination occurred. In many cases persons met by the HLT said that they had been informed of the Orders by foreign radio stations rather than by the authorities. The HLT also noted that the Orders had not been disseminated at all via the mass media, nor distributed in languages other than English and Burmese, and that in particular the Orders had not been translated into any of the other major ethnic languages spoken in the country. The HLT was informed by people in different parts of the country that they could not understand the Orders that were posted in their areas because they did not read or understand Burmese well enough. The HLT further noted that the Orders had not always been disseminated together, although they need to be read in conjunction.

12. The Committee also notes the allegation made by the ICFTU in its communication dated 29 November 2001 that:

Indeed, many reports included herewith confirm that, in certain parts of the country at least, Order 1/99, its Supplementary Order and other relevant legal texts had been widely publicised. Reports abound in the ICFTU’s evidence of meetings organised in villages by the authorities to this effect, ahead of the ILO’s visit. As often as not, they had been run by senior SPDC officials dispatched from regional commands or even Rangoon.

In actual fact, villagers frequently - if not always - had to pay the costs of these "information gatherings", such as gasoline or food and drink for visiting SPDC officials. As for the "Orders" themselves, they were publicised, quite cynically, through what can only be described as "forced distribution", whereby the so-called "Green Book" issued by the authorities on the subject had to be bought at 1,000 kyats or more per copy, with typically 1 to 8 copies forcibly sold to each village; the villagers were also forced to purchase foam boards on which the "Orders" had to be posted.

The Government may wish to comment on this allegation.

13. Budgeting of adequate means. The Committee notes 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 taken up by the HLT with the Myanmar authorities. 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. The HLT also inquired about any changes in budgetary arrangements. It appears from paragraphs 63 to 66 of the report of the HLT that at the time the report was finalized (29 October 2001), the HLT had not received information allowing it to conclude that the authorities had indeed provided for any real substitute for the cost-free forced labour imposed to support the military or for public works projects. The Committee again expresses the hope that the necessary detailed instructions will soon be issued, and that, in the words of paragraph 539(b) of the Commission of Inquiry’s report, provision will also be made for "the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour".

14. Monitoring machinery. In its report, the Government refers to the creation of a Ministerial Level Committee and a National Level Implementation Committee which are not only to monitor the adherence to law by local authorities, members of the armed forces and other public service personnel, but also to ensure that the local authorities and the people at the grass-root level are fully aware of the aforementioned orders nationwide. Also, Field Observation Teams (FOT) respectively led by Heads of the Departments under the Ministry of Labour and comprising of responsible personnel from the General Administration Department, Myanmar Police Force and the Department of Labour, have been dispatched to various areas to investigate the situations relating to the practice of forced labour and to observe the public awareness of these Orders. These FOTs will make frequent visits to all areas within the country. These are instances of the Government’s endeavours to abolish the practice of forced labour throughout the country. The Committee notes these indications, which need, however, to be placed in the context, already considered above, of the absence of specific and concrete instructions as well as budgetary allocations for the replacement of forced and unpaid labour. Information available on actual practice will be considered in paragraphs 15 to 22 hereafter and the punishment of offenders in paragraphs 23 et seq. below.

  B. Information available on actual practice

15. The Government’s view. In its report on the application of the Convention transmitted on 30 September 2001, the Government refers to its "endeavours to abolish the practice of forced labour throughout the country", but gives no indications as to the results so far achieved. At a briefing of heads of Foreign missions in Yangon on the ILO Governing Body meeting of November 2001, given on 19 November 2001 by the Myanmar Ministry of Foreign Affairs, as reported on 20 November by "The New Light of Myanmar" and "Reuters", Deputy Minister for Foreign Affairs, Khin Maung Win, is stated to have said that "following the transmission by the High-Level Team of some complaints regarding forced labour, the authorities concerned launched thorough investigations; and these investigations showed that the allegations were baseless and false and the authorities had replied to the ILO to this effect ...".

16. HLT findings. "Findings as regards the impact on the realities of forced labour of the steps taken to implement the Orders" are set out in paragraphs 54 to 58 of the report of the HLT as follows.

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.

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.

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.

57. ... 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:

(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.

(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:

(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.

(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.

(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.

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.

17. HLT analysis. In identifying obstacles to the more effective eradication of forced labour, the HLT referred in particular to the "self-reliance" policy of the army, the uncertainty as regards substitute financial/practical arrangements (see paragraph 13 above) and institutional obstacles. In paragraphs 59 to 62 of its report, the HLT describes the "self-reliance" policy of the army and its bearing on the practice of forced labour in the following terms.

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 - if uneven - 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. ...

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. ...

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). 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. ...

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. 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.

18. The ICFTU communication. In its communication dated 29 November 2001, the ICFTU states that:

In spite of their denials, alleged efforts to suppress the practice, professed good will and spirit of co operation with the ILO, the military authorities of Burma have continued to resort to forced labour on a massive scale. Senior, middle and low ranking army officers and rank and file soldiers, as well as civilian authorities, have continued to exact forced labour in all areas of activity previously identified by the ILO. In support of its claims, the ICFTU encloses nearly 30 reports and other documents, totalling over one hundred pages. They provide detailed evidence, from the same sources and of the same quality as the hundreds of reports examined over the last 5 years by the ILO and found to be credible and authentic.

Appendices to this letter provide ample and recent evidence of forced labour, including forced portering for the army, often in combat, with frequent deaths of porters from exhaustion, disease, deprivation of food, water, rest and medical care or by sheer murder. They also describe forced road clearing and building, construction and maintenance of army installations, confiscation of land and forced agricultural work on this land for the army’s benefit or profit, compulsory supplies of construction materials, food (including rice, meat, fish, vegetables and fruit) and alcohol, forced labour in army owned brick kilns and forced supply of firewood for them, random and arbitrary tax collection of every kind and many more.

The Committee notes that the documents appended to the ICFTU communication cover the period January to November 2001. While concurring with the HLT findings on the strong correlation between the presence of military camps and the practice of forced labour, they also point to the current use of forced labour on civil infrastructure projects, both before and after the HLT visit, and often include precise indications of time and place, any military battalions or companies involved and the names of the commanders.

19. Allegations of forced labour on civil infrastructure projects included in the ICFTU documentation refer to the supply and transport of road metal and wooden sleepers to the Ye-Tavoy railroad in Natkyizin, Yebyu Township, in September 2001, and the following two examples, as summarized by the ICFTU:

-            forced labour on a railroad in southern Shan State, last October (hundreds of civilians conscripted to work on a new rail line being built from the state capital Taung gyi to the township administrative centre of Namzang; 240 people from Namzang township alone, forced to clear area for the railroad, under the supervision of Captain Than Naing Oo, Infantry Battalion No. 66, assisted by personnel of the national railway company);

-            forced road repairs in Kyaikmayaw Township (Mon State), in early October, in order to improve a local road ahead of a visit by Brigadier General Myint Swe (Commander-in-Chief, Southeast Military Command) to Tarana village; villagers were forced to repair the motor road for nine days (6 14 October); Brig. Gen. Myint Swe visit (i.e. the reason which prompted the forced labour in question) took place shortly after he had met the ILO High Level Team, in Mawlamyine, on 25 and 27 September 2001 (see ILO doc. No. GB.282/4/Appendix VI, page 4); according to local villagers, forced labour in the area was interrupted during the presence of the ILO HLT in the country, and resumed afterwards.

20. Further allegations of forced labour by villagers concern infrastructure projects of a less civil character, such as the building of a road connecting villages to military bases on Kalargote island, from mid-October until the first week of November; the forced clearing of a road infested with landmines, between Mawchi (in Kayah State) and Taungoo (in Bago Division), last September; road clearance along railway and motor roads in Ye township, in October 2001; and clearance of all roads out of Lai kha town up to a distance of about 30 km, in June 2001.

21. The greatest number of indications of forced labour communicated by the ICFTU concern service to the military, such as the conscription of 250 civilian porters, including 108 women and children, some as young as eight, on 13 June 2001 on the outskirts of Murng Kerng town by a patrol of troops from LIB 514 led by a (named) captain under the orders of the (named) battalion commander. It is stated that these villagers were released on 28 June 2001 after 16 days of service without pay, during which the women porters above 15 years were raped by the soldiers, and about five to six days later the same troops ordered the village headmen in the area to provide ten to 15 civilian porters from each village. There are similarly precise allegations for the period June to October 2001 concerning the forced cutting of bamboo and making of fences and bamboo walls for barracks; repair of barracks; clearing of drainage channels in the bases and trenches and bunkers around them, and clearing of bushes; the forced digging of ditches, with the killing of a slow worker and charging his village 3,000 kyats for the repatriation of his body; serving as messengers, cutting and carrying firewood, cooking, carrying water and doing errands; growing rice on fields confiscated from the forced labourers; and the ordering, on 18 September 2001, of villagers by the (named) new commander of LIB No. 65, to supply 4,000 sheets of thatching material for a new amphetamine factory under construction 14 miles from Mong Ton on the Mong Ton Mong Hsat road (Shan State).

22. The Committee hopes that the Government will examine the indications given by the ICFTU and supply detailed information on any action taken thereupon, as well as upon the report of the HLT, to prosecute all persons found responsible of ordering forced labour and of any concomitant crimes. More fundamentally, the Committee hopes that the required specific and concrete instructions and budgetary provisions for the effective eradication of forced labour, as indicated by the Commission of Inquiry in paragraph 539(b) of its report and referred to again in paragraphs 9 and 13 above, will at last be adopted, and that the Government will supply full information on the action taken.

III.  Enforcement

23. In paragraph 539(c) of its recommendations the Commission of Inquiry urged the Government to take the necessary steps to ensure:

... that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced labour or compulsory labour be strictly enforced, in conformity with Article 25 of the Convention. This requires thorough investigation, prosecution and adequate punishment of those found guilty.

24. In its previous observation, the Committee noted that point 4 of the directive dated 1 November 2000 from the State Peace and Development Council to All State and Divisional Peace and Development Councils (referred to in paragraph 8 above) provides for the prosecution of "responsible persons" under section 374 of the Penal Code, and that a similar clause is included in point 3 of an instruction dated 27 October 2000, addressed by the Director-General of the Police Force to all units of the police force. Moreover, under points 4 to 6 of the instruction dated 27 October 2000:

4. If any affected person files a verbal or written complaint to the police station of having been forced to contribute labour, the latter shall record the complaint in Forms A and B of the police station and send the accused for prosecution under section 374 of the Penal Code.

5. It is hereby directed that the police stations and units concerned at various levels shall be further instructed to make sure their strict compliance with the said Order as well as to supervise so that there shall be no requisition of forced labour. A copy of the Order Supplementing Order No. 1/99 issued by the ministry of Home Affairs on 27 October 2000 is enclosed herewith.

6. It is instructed to acknowledge receipt of this directive and to report back actions taken on the matter.

25. With regard to point 4 of the instruction dated 27 October 2000 the Committee expressed the hope that prosecutions under section 374 of the Penal Code would be brought by the law enforcement agencies on their own initiative, without waiting for complaints by the victims, who may not consider it expedient to denounce the "responsible persons" to the police. The Committee hoped that in commenting on indications that the imposition of forced labour has continued beyond October 2000, the Government would also report on concrete action taken under section 374 of the Penal Code.

26. None of these concerns have so far been met. In its report, the Government repeats:

... that necessary mechanisms have also been put in place to take action to the local authorities who fail to abide by the Orders under Section 374 of the Penal Code or any other existing law. And anyone wishing to make a complaint for being subjected to forced exaction of labour can do so in respective Township Court, Police Station or Township or Ward and Village Tract Peace and Development Council. Therefore, there are proper means to accommodate such complaints already in place.

No action under section 374 of the penal Code has been brought to the knowledge of the Committee.

27. In paragraphs 52 and 53 of its report, the HLT describes "the realities of enforcement" as follows:

52. The HLT was also given a document prepared by the Ministry of Home Affairs entitled "Action Taken on Cases For Not Abiding Order 1/99 and Its Supplementary Order Issued by the Ministry of Home Affairs". Thirty-eight instances where action had been taken were mentioned. A meeting was specifically organized on the HLT’s last day in the country in order to obtain further details concerning the cases referred to in this document. It appeared that all actions taken were of an administrative  nature. They ranged from a simple warning to dismissal or discharge of the person concerned. None referred to section 374 of the Penal Code as provided for in the Orders. The HLT was informed that "inquiry committees" had authority to decide on the measures that should be imposed in case of violations of the Orders. To date, these inquiry committees had deemed it more appropriate to deal with alleged breaches of the Orders from an administrative standpoint rather than by having recourse to criminal prosecution. Out of the 38 cases, 10 occurred prior to May 1999 and therefore were not covered by the Orders. All cases involved TPDC or VPDC officers. ... It was apparent to the HLT that this document was a totally inadequate response to any inquiry as to what action had been taken to give effect to the Orders; yet no other response was made, nor, it seems, could be.

53. Most members of the general population with whom the HLT met during its visit to the country stated that they would not use the complaint procedure as envisaged in the Orders (through the courts or the police). They would more likely complain to the VPDC or TPDC. Many were scared that reprisals could be taken against them. In that respect, the HLT was given several accounts of people being beaten, detained or otherwise punished for earlier complaints on this or other issues. ...

The HLT also notes, in paragraph 68 of its report:

... 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.

28. The ICFTU in its communication dated 29 November 2001 stresses:

... that in many cases, both military and civilian authorities have blatantly brushed aside villagers’ and headmen’s objections to performing forced labour under the rights purportedly granted to them under Order 1/99 and the Supplementary Order. This extends from a village headman being punished twice when his villagers, invoking Lt. Gen. Khin Nyunt’s "Orders", refused to perform forced labour (last September in Kawkareik, Karen State), to Tadmadaw officers openly disregarding them or even threatening to shoot anyone refusing to comply, as is described below.

In August 2001, villagers from Kyar Inn Seikkyi township (Karen State) complained to local army officials against demands for forced labour. They had been publicly informed by SPDC officials from Rangoon about the "Order", and forced to buy copies of the "Green Book" at prices going from 500 to 3,000 kyats. In reply, Lt. Col. Win Myint, Battalion Commander, Infantry Battalion (IB) 232, Taung Tee Camp, said that the "order" had been issued from Rangoon and it would be effective in Rangoon. In this area, "he" was the area commander sent by Rangoon and they had to follow his instructions. If they wanted Order No. 1/99 to be applied in their area, they would have to "relocate to Rangoon and stay with Khin Nyunt" ...

The documentation transmitted by the ICFTU:

... also includes a detailed account of forced portering for an army platoon of 8 soldiers, led by one 2nd-Lt. Tin Myo Win, Infantry Battalion (IB) 266, based in Hakha (Chin State, on the India-Burma border). The army column itself was based at Sa-Baung-Tha army camp. A group of 54 villagers had to porter for the army for a period of 8 days. As they were not given any compensation for the work, various chairmen of the VPDC (village authorities), quoting General Khin Nyunt’s "Order" asked 2nd-Lt. Tin Myo Win for the corresponding wages. According to [the] report, "Lt. Tin Myo Win replied that anyone who should dare to ask for compensation next time would be shot and killed at once. They were so terrified that no one dared to ask for compensation anymore" ...

The ICFTU puts this case "in the context of the dramatic incident reported by the HLT to Lt. Gen. Khin Nyunt" and referred to in paragraphs 28 and 53 and Appendix XI of its report, as well as the alleged detention of a witness who spoke to the HLT during its visit in Arakan State, and whose very existence was subsequently denied by the authorities. The ICFTU also notes "that other reports of harassment exist, including detention, against witnesses who spoke to the HLT", and refers to two such incidents said to have occurred in Pa-an district in October 2001. The Government may wish to comment on these matters, indicating in particular how any investigations into the allegations were conducted, by the military themselves or by the judiciary, and any measures taken to protect from reprisals both witnesses having testified, and victims of forced labour seeking redress.

*  *  *

29. In short, the Committee notes that none of the three recommendations formulated by the Commission of Inquiry and accepted by the Government have so far been met. Despite longstanding promises, as well as the Government’s assured good will, the Village Act and Towns Act have not yet been amended. While Order No. 1/99, as supplemented, has been widely publicized and may for the time being have affected certain civil infrastructure projects, by itself the order has not stopped the exaction of forced labour, in particular by the military. There is no indication that the necessary specific and concrete instructions and budgetary provisions have been adopted or even prepared with a view to effectively replacing forced labour by offering decent wages and employment conditions to freely attract any workers needed. Finally, there is no indication that any person responsible for the exaction of forced labour and often concomitant crimes was sentenced or even prosecuted under section 374 of the Penal Code or any other provision, in conformity with Article 25 of the Convention.

30. People met by the HLT "indicated that there was no point in complaining to the authorities since it was the authorities themselves who were imposing forced labour" (paragraph 53 of the report). Whilst the Government permits the exploiters of forced labour to be perceived as representing the state authority, it thereby extends the validity of the Commission of Inquiry’s concluding observation:

... that the impunity with which government officials, in particular the military, treat the civilian population as an unlimited pool of unpaid forced labourers and servants at their disposal is part of a political system built on the use of force and intimidation to deny the people of Myanmar democracy and the rule of law.

[The Government is asked to supply full particulars to the Conference at its 90th Session.]

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  The Committee notes that the Government has not supplied a report on the application of the Convention. Following the recommendations of the Commission of Inquiry established to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), the Committee has, however, taken note of the following information:

-  the information presented by the Government to the Director-General of the ILO in communications dated 21 January, 20 March, 27 May, 29 October (as supplemented subsequently), and 3, 15 and 17 November 2000;

-  the information submitted to, and the discussions held in, the Governing Body of the ILO at its 277th and 279th Sessions in March and November 2000;

-  the information and discussion at the International Labour Conference at its 88th Session (May-June 2000);

-  the resolution adopted by the International Labour Conference at its 88th Session concerning the measures recommended by the Governing Body under article 33 of the ILO Constitution on the subject of Myanmar to secure compliance with the recommendations of the Commission of Inquiry, and the entry into effect of those measures on 30 November 2000, following consideration of the matter by the Governing Body at its 279th Session (November 2000);

-  the resolutions adopted by the General Assembly of the United Nations at its 54th Session (17 December 1999) and by the United Nations Commission on Human Rights at its 56th Session (March-April 2000) on the situation of human rights in Myanmar (extracts in International Labour Conference, 88th Session, Geneva, 2000, Provisional Record No. 4, Annex III);

-  the second report of the Director-General of the ILO to the members of the Governing Body on measures taken by the Government of Myanmar, dated 25 February 2000;

-  the interim report prepared by judge Rajsoomer Lallah, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, dated 22 August 2000 [(UN document A/55/359]; and the note by the Secretary-General of the United Nations on the same subject, dated 20 October 2000 [UN document A/55/509];

-  the reports of the ILO technical cooperation missions to Myanmar of May 2000 [(ILC, 88th Session, Geneva, 2000, Provisional Record No. 8] and October 2000 [GB.279/6/1 and Add.1];

-  a communication dated 15 November 2000 in which the International Confederation of Free Trade Unions submitted to the ILO voluminous documentation referring to the imposition of forced labour in Myanmar during the period June-November 2000, a copy of which was sent to the Government for such comments as it may wish to present;

-  a press release issued on 17 November 2000 by the Ministry of Foreign Affairs of the Union of Myanmar in Yangon, and an information sheet issued by the Myanmar Information Committee in Yangon on a press conference held on 18 November 2000 by the Government on the decision of the ILO Governing Body to activate measures on the subject of Myanmar.

2.  Information available on the observance of the Convention by the Government of Myanmar will be discussed in three parts, dealing with: (i) the amendment of legislation; (ii) any measures taken by the Government to stop the exaction in practice of forced or compulsory labour and information available on actual practice; (iii) the enforcement of penalties which may be imposed under the Penal Code for the exaction of forced or compulsory labour.

I.  Amendment of legislation

3.  In paragraph 470 of its report of 2 July 1998, the Commission of Inquiry noted:

… that section 11(d), read together with section 8(1)(g), (n) and (o) of the Village Act, as well as section 9(b) of the Towns Act provide for the exaction of work or services from any person residing in a village tract or in a town ward, that is, work or services for which the said person has not offered himself or herself voluntary, and that failure to comply with a requisition made under section 11(d) of the Village Act or section 9(b) of the Towns Act is punishable with penal sanctions under section 12 of the Village Act or section 9(a) of the Towns Act. Thus, these Acts provide for the exaction of "forced or compulsory labour" within the definition of Article 2(1) of the Convention.

The Commission of Inquiry further noted that the wide powers to requisition labour and services under these provisions do not come under any of the exceptions listed in Article 2, paragraph 2, of the Convention and are entirely incompatible with the Convention. Recalling that the amendment of these provisions had been promised by the Government for over 30 years, the Commission urged the Government to take the necessary steps to ensure that the Village Act and the Towns Act be brought into line with the Convention without further delay, and at the very latest by 1 May 1999 (paragraph 539(a) of the Commission’s report).

4.  In its previous observation, the Committee noted that by the end of November 1999, neither the Village Act nor the Towns Act had been amended, nor had any draft law proposed or under consideration for that purpose been brought to the knowledge of the Committee. However, an "Order Directing Not to Exercise Powers Under Certain Provisions of the Town Act, 1907 and the Village Act, 1907" (No. 1/99) was issued by the Government on 14 May 1999, which in fact still reserved the exercise of powers under the relevant provisions of the Village Act and the Towns Act which remain incompatible with the requirements of the Convention.

5.  The Committee notes from the report of the October 2000 ILO technical cooperation mission to Myanmar (GB.279/6/1, paragraphs 9 and 10, Annexes 13 and 19) that a draft text providing for the amendment of the Village Act and the Towns Act through an amendment of Order No. 1/99 was not retained by the Government. However, the same report (in Annex 19) reproduces the English text of an "Order Supplementary Order No. 1/99" made by the Ministry of Home Affairs under the direction of the State Peace and Development Council on 27 October 2000 which modifies Order No. 1/99 so as to order "responsible persons including members of the local authorities, members of the armed forces" etc. "not to requisition work or service notwithstanding anything contained" in the relevant sections of the Towns and Village Acts, except in cases of emergency as defined in Article 2(2)(d) of the Convention (GB.279/6/1, Annex 19). The Burmese text of this Order of 27 October, which was to be published in the Myanmar Gazette, has not yet been supplied to the ILO.

6.  The Committee observes that the amendment of the Village and Towns Acts sought by the Commission of Inquiry as well as the present Committee and promised by the Government for many years has not yet been made. It again expresses the hope that the Village Act and the Towns Act will at last be brought into conformity with the Convention.

7.  The Committee nevertheless notes that Order No. 1/99 as supplemented by the Order of 27 October 2000 could provide a statutory basis for ensuring compliance with the Convention in practice, if given effect bona fide not only by the local authorities empowered to requisition labour under the Village and Towns Acts, but also by civilian and military officers entitled to call on the assistance of local authorities under the Acts. This, in the view of the Committee, calls for further measures to be undertaken, as indicated by the Commission of Inquiry in its recommendations in paragraph 539(b) of its report.

II.  Measures to stop the exaction in practice of forced or compulsory
  labour and information available on actual practice

A.  Measures to stop the exaction in practice of forced or compulsory labour

8.  In its recommendations in paragraph 539(b) of its report of July 1998, the Commission of Inquiry indicated that steps to ensure that in actual practice no more forced or compulsory labour be imposed by the authorities, in particular the military, were:

… all the more important since the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or Towns Act. Thus, besides amending the legislation, concrete action needs to be taken immediately for each and every of the many fields of forced labour examined in Chapters 12 and 13 [of the Commission’s report] to stop the present practice. This must not be done by secret directives, which are against the rule of law and have been ineffective, but through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. Also, action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required … .

9.  The Committee notes from the report of the October 2000 ILO technical cooperation mission to Myanmar, the suggestion made by the mission of a Supplementary Order or directive from the Office of the Chairman of the State Peace and Development Council concerning requisition of labour or services (GB.279/6/1, Annex 13). The suggested text was to order all state authorities, including military, police and civilian authorities and their officers, not to requisition persons to provide labour or services for any purpose, nor to order others to requisition such labour or services, regardless of whether or not payment is made for said labour or services, except in cases of emergency as defined in Article 2(2)(d) of the Convention. The suggested prohibition was to include but not be limited to the requisition of labour or services for the following purposes:

(a)  portering for the military (or other military/paramilitary groups, for military campaigns or regular patrols);

(b)  construction or repair of military camps/facilities;

(c)  other support for camps (such as guides, messengers, cooks, cleaners, etc.);

(d)  income generation by individuals or groups (including work in army-owned agricultural and industrial projects);

(e)  national or local infrastructure projects (including roads, railways, dams, etc.);

(f)  cleaning/beautification of rural or urban areas.

Similar prohibitions were to apply to the requisition of materials or provisions of any kind and to demands of money except where due to the State or to a municipal or town committee under relevant legislation. Furthermore, the suggested text was to provide that if any state authority or its officers requires labour, services, materials or provisions of any kind and for any purpose, they must make prior budgetary arrangements to obtain these by a public tender process or by providing market rates to persons wishing to supply these services, materials or provisions voluntarily, or wishing to offer their labour.

10.  The Committee notes that the text suggested by the mission was not adopted, but that the English versions of several instructions dated 27 and 28 October 2000 and 1 November 2000 were forwarded to the ILO after the departure of the mission and reproduced in addenda to the mission’s report (GB.279/6/1(Add.1)(Rev.1) and (Add.2)).

11.  The instruction dated 27 October 2000 "Prohibiting Requisition of Forced Labour" is signed for the Director-General of the Police Force and addressed to all units of the police force. The instruction dated 28 October 2000 on the same subject is addressed by the Director-General of the General Administration Department of the Ministry of Home Affairs to all State/Divisional Commissioners and General Administration Departments and requires, inter alia, Order No. 1/99 and the order supplementing it to be displayed separately on noticeboards of all the levels of peace and development councils as well as the General Administration Departments.

12.  The instruction dated 1 November 2000 "Prohibiting Requisition of Forced Labour" is signed at the highest level, by Secretary-1 of the State Peace and Development Council, and addressed to the Chairmen of all State and Divisional Peace and Development Councils. The latter instruction thus reaches beyond institutions that come under the authority of the Ministry of Home Affairs. It is, however, primarily directed to the enforcement of Order No. 1/99 and the Order of 27 October 2000 supplementing it, which are limited in scope to the requisition of forced labour under the Village Act and the Towns Act, i.e. not by civilian or military state officers but by local authorities, who may requisition labour under the Acts when called upon to provide assistance to civilian and military state officers. Nevertheless, the instruction dated 1 November interprets the Supplementing Order of 27 October 2000 as follows:

2.  … The Supplementing Order renders the requisition of forced labour illegal and stipulates that it is an offence under the existing laws of the Union of Myanmar. Responsible persons, including the local authorities, members of the armed forces, members of the police force and other public service personnel are also prohibited not to requisition forced labour and are instructed to supervise so that there shall be no forced labour.

It would appear to the Committee that a bona fide application of this prohibition should cover the typical case of members of the armed forces who order local authorities to provide labourers, even if the manner of complying with such order - through requisition or hiring of labourers or otherwise - is left to the local authorities.

13.  The instruction dated 1 November 2000 continues as follows:

3.  Therefore, it is hereby directed that the state and divisional peace and development councils shall issue necessary instructions to the relevant district and township peace and development councils to strictly abide by the prohibitions contained in Order No. 1/99 and the Supplementing Order of the Ministry of Home Affairs and also to effectively supervise to ensure that there shall be no forced labour within their respective jurisdictions.

4.  Responsible persons, including members of the local authorities, members of the armed forces, members of the police force and other public service personnel who fail to abide by the said Order No. 1/99 and the Supplementing Order shall be prosecuted under section 374 of the Penal Code or any other existing laws.

It would appear to the Committee that again, as set out in paragraph 12 above, a bone fide application of the instruction would include, in the scope of point 4 of the instruction, members of the armed forces who order local authorities to supply labour.

14.  It remains to be seen whether the "necessary instructions" yet to be issued by the state and divisional peace and development councils under point 3 of the instruction of 1 November will contain the kind of details necessary for a feasible implementation. Such details were set out by the Commission of Inquiry in paragraph 539(b) of its report and included by the October 2000 technical cooperation mission in its suggestion mentioned in paragraph 9 above.

15.  The three instructions forwarded so far to the ILO do not yet contain any positive indication on the manner in which authorities that have been used to rely on forced and unpaid labour contributions of the population are hereafter to make realistic provision for the labour and services they may require.

16.  Furthermore, the three instructions do not spell out the various forms of forced labour found by the Commission of Inquiry and this Committee to be mainly imposed in practice, as listed in paragraph 9 above. In this regard, the Committee recalls that most of the forms of forced labour or services requisitioned concerned the military. The Committee notes that "members of the armed forces" are specifically included among the responsible persons listed in point 4 of the instruction dated 1 November 2000 (quoted in paragraph 13 above). However, in point 3 of the same instruction, the order to issue the necessary further - and, hopefully, more detailed - instructions is addressed to the state and divisional peace and development councils (which in fact include officers of the armed forces), but not to the regional commanders of the armed forces in their military capacity.

17.  In the absence of specific and concrete instructions to the civilian and military authorities containing a description of the various forms and manners of exaction of forced labour, the application of the provisions adopted so far turns upon the interpretation in practice of the notion of "forced labour". This cannot be taken for granted, as shown by the various Burmese terms used sometimes when labour was exacted from the population - including "loh ah pay", "voluntary" or "donated" labour. The need for clarity on the point is underscored by the Government’s recurrent attempts to link the pervasive exaction of labour and services by mainly military authorities to merit which may be gained in the Buddhist religion from spontaneously offered help. The Commission of Inquiry recalled in paragraph 539(c) of its report that "the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government’s statements" was "all the more likely to occur in actual recruitment by local or military officials".

18.  Thus, clear instructions are still required to indicate to all officials concerned, including officers at all levels of the armed forces, both the kinds of tasks for which the requisition of labour is prohibited, and the manner in which the same tasks are henceforth to be performed. The Committee hopes that the necessary detailed instructions will soon be issued, and that, in the words of paragraph 539(b) of the Commission of Inquiry’s report, provision will also be made for "the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour".

B.  Information available on actual practice

(a)  The practice August 1998 to December 1999

19.  In his reports dated 21 May 1999 and 25 February 2000 to the members of the Governing Body, the Director-General indicated that all information on actual practice that was received (from workers’ and employers’ organizations, intergovernmental organizations and governments of member States of the ILO) in reply to his requests, referred to continued widespread use of forced labour by the authorities, in particular by the military.

(b)  Information on the practice up to November 2000

20.  In its communication dated 15 November 2000, the ICFTU refers to the persistence of severe breaches of the Convention by the military authorities. Documentary appendices enclosed by the ICFTU represent over 1,000 pages drawn from over 20 different sources and include reports, interviews of victims; over 300 forced labour orders, photographs, video recordings and other material. A few events described therein took place in the first half of the year 2000; an overwhelmingly large proportion of the documents concerns the period June to November 2000.

21.  An essential part of the ICFTU submission consists of hundreds of "forced labour orders", issued mainly by the army but also by armed groups under its control and elements of the local administration. As stated by the ICFTU, these are similar in kind, shape and contents to the orders already examined by the Commission of Inquiry and the regular ILO supervisory mechanisms and found by same to be authentic. Documentary materials submitted refer to the persistence on a large scale of forced portering, including by women, and the murder of forced porters no longer able to carry their burden. In addition to forced portering, all other forced labour practices identified previously by the Commission of Inquiry are referred to for the period June to November 2000. A great number of specific reported instances include forced labour for the building and maintenance of roads, bridges, railroads, water canals, dikes, dams and reservoirs, as well as for the building, repair, maintenance and servicing of army camps; and the requisition of labour as well as seeds, fertilizer, materials and equipment for army-held agricultural land, forests and installations.

22.  As indicated above, copies of the ICFTU communication of 15 November 2000, including the voluminous documentation submitted, were sent to the Government for such comments as it may wish to present.

III.  Enforcement

23.  In paragraph 539(c) of its recommendations the Commission of Inquiry urged the Government to take the necessary steps to ensure:

… that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced labour or compulsory labour be strictly enforced, in conformity with Article 25 of the Convention. This requires thorough investigation, prosecution and adequate punishment of those found guilty.

24.  In practice, no action whatsoever under section 374 of the Penal Code has so far been brought to the knowledge of the Committee.

25.  The Committee notes that point 4 of the instruction dated 1 November 2000 from the State Peace and Development Council to All State and Divisional Peace and Development Councils, reproduced in paragraph 13, provides for the prosecution of "responsible persons" under section 374 of the Penal Code. Similar clauses are included in point 3 of the instruction dated 27 October, and point 6 of the instruction dated 28 October, referred to in paragraph 11 above. Moreover, under points 4 to 6 of the instruction dated 27 October 2000, addressed by the Director-General of the Police Force to all units of the police force:

4.  If any affected person files a verbal or written complaint to the police station of having been forced to contribute labour, the latter shall record the complaint in Forms A and B of the police station and send the accused for prosecution under section 374 of the Penal Code.

5.  It is hereby directed that the police stations and units concerned at various levels shall be further instructed to make sure their strict compliance with the said Order as well as to supervise so that there shall be no requisition of forced labour. A copy of the Order Supplementing Order No. 1/99 issued by the Ministry of Home Affairs on 27 October 2000 is enclosed herewith.

6.  It is instructed to acknowledge receipt of this directive and to report back actions taken on the matter.

26.  With regard to point 4 of the latter instruction (dated 27 October 2000) the Committee hopes that prosecutions under section 374 of the Penal Code will be brought by the law enforcement agencies on their own initiative, without waiting for complaints by the victims, who may not consider it expedient to denounce the "responsible persons" to the police. The Committee hopes that in commenting on indications that the imposition of forced labour has continued beyond October 2000, the Government will also report on any concrete action taken under section 374 of the Penal Code.

27.  The Committee has noted the assurance, in the Government’s letter dated 29 October 2000 to the Director-General of the ILO, of the "political will to ensure that there is no forced labour in Myanmar, both in law and in practice". It also has taken due note of the Order Supplementing Order No. 1/99 and the three instructions issued between 27 October and 1 November 2000, and of the view of the Employer members of the Governing Body at its 279th Session (November 2000) that this was "too little too late". At a press conference held 18 November 2000 in Yangon on the decision of the Governing Body of the ILO to activate measures on the subject of Myanmar, the Government indicated that it would no longer cooperate with the ILO in relation to the Forced Labour Convention, 1930 (No. 29), but that it would continue to take steps to prevent forced labour, as this was its policy. The Committee hopes that the Government will thus at last take the necessary measures to ensure the observance in law as well as in practice of the Convention, a basic human rights instrument freely ratified by Myanmar. It also hopes that the Government, which had failed to take part in the proceedings before the Commission of Inquiry, will avail itself of the opportunity to present its views and progress in reporting on the application of the Convention, in conformity with its obligations under article 22 of the ILO Constitution.

[The Government is asked to report in detail in 2001.]

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

1. The Committee notes that the Government has not supplied a report on the application of the Convention. Following the recommendations of the Commission of Inquiry established to examine its observance of the forced labour Convention, the Committee notes the information presented by the Government in two letters of 12 and 18 May 1999 to the Director-General of the ILO, and the report dated 21 May 1999 of the Director-General to the members of the Governing Body on measures taken by the Government of Myanmar; the Memorandum dated 7 June 1999 of the Government of Myanmar on said report of the Director-General; and the information presented by the Government in June 1999 to the Conference Committee on the Application of Standards and the discussion which took place in that Committee. The Committee also notes the observations made by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 19 October 1999, entitled "Failure by the Government to implement the recommendations of the Commission of Inquiry established under article 26 of the ILO Constitution to examine the complaint concerning observance by Burma of the Forced Labour Convention, 1930 (No. 29)". These observations were transmitted to the Government for any comments which it might deem useful, but no such comments have so far been received.

2. In its previous observation, the Committee recalled that a complaint under article 26 of the Constitution was submitted in 1996, alleging failure by the Government of Myanmar to observe the present Convention, and that a Commission of Inquiry was established to examine the complaint. The Committee noted the conclusions and recommendations of the Commission of Inquiry, which confirmed and expanded its own previous conclusions as to the Government's failure to comply with this fundamental Convention, the findings of the Conference Committee on the Application of Standards, as well as the findings of the Governing Body when it earlier examined a representation on the same subject. It noted further the Government's expression of willingness to implement the recommendations contained in the report of the Commission of Inquiry. The Committee expressed the firm hope that the Government would very shortly be in a position to indicate that it had complied fully with the Convention.

3. Information available on the observance of the Convention by the Government of Myanmar will be set out in three parts, dealing with: (i) the amendment of legislation; (ii) any measures taken by the Government to stop the exaction in practice of forced or compulsory labour and information available on actual practice; (iii) the enforcement of penalties which may be imposed under the Penal Code for the exaction of forced or compulsory labour.

I. Amendment of legislation

4. In paragraph 470 of its report, the Commission of Inquiry noted:

... that section 11(d), read together with section 8(1)(g), (n) and (o) of the Village Act, as well as section 9(b) of the Towns Act provide for the exaction of work or services from any person residing in a village tract or in a town ward, that is, work or services for which the said person has not offered himself or herself voluntarily, and that failure to comply with a requisition made under section 11(d) of the Village Act or section 9(b) of the Towns Act is punishable with penal sanctions under section 12 of the Village Act or section 9(a) of the Towns Act. Thus, these Acts provide for the exaction of "forced or compulsory labour" within the definition of Article 2(1) of the Convention.

The Commission further noted that the wide powers to requisition labour and services under these provisions do not come under any of the exceptions listed in Article 2, paragraph 2, of the Convention and are entirely incompatible with the Convention. Recalling that the amendment of these provisions had been promised by the Government for over 30 years and again announced in the Government's observations on the complaint, the Commission urged the Government to take the necessary steps to ensure that the Village Act and the Towns Act be brought into line with the Convention without further delay, and at the very latest by 1 May 1999 (paragraph 539(a) of the Commission's report).

5. All information available indicates that, by the end of November 1999, neither the Village Act nor the Towns Act had been amended, nor has any draft law proposed or under consideration for that purpose been brought to the knowledge of the Committee.

6. However, an "Order Directing Not to Exercise Powers Under Certain Provisions of the Town Act, 1907 and the Village Act, 1907" was issued by the Government on 14 May 1999, which will be considered in paragraphs 8 et seq. below.

II. Measures to stop the exaction in practice of forced or compulsory labour and information available on actual practice

A. Measures to stop the exaction in practice of forced or compulsory labour

7. In paragraph 539(b) of its recommendations of July 1998, the Commission of Inquiry indicated that:

... besides amending the legislation, concrete action needs to be taken immediately for each and every of the many fields of forced labour examined in Chapters 12 and 13 (of the Commission's report) to stop the present practice. This must not be done by secret directives, which are against the rule of law and have been ineffective, but through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. Also, action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required ...

8. While the Commission indicated that action needed to be taken immediately, it appears from the information supplied by both the Government of Myanmar and other sources, that the concrete measures called for by the Commission of Inquiry had not been taken by mid-May 1999. However, in its letter of 18 May 1999, the Government indicated that an Order was issued by the Ministry of Home Affairs dated 14 May 1999 directing the relevant authorities not to exercise the powers conferred on them under section 7(1), (l) and (m), and section 9 and 9A of the Towns Act and section 8(1), (g), (n) and (o), section 11(d) and section 12 of the Village Act. This indication does not correspond to the content of Order No. 1/99 issued on 14 May 1999, which reserves the exercise of powers under the relevant provisions of the Village Act, 1908 (erroneously dated 1907 in the published Order), and the Towns Act, 1907, in several ways, as pointed out in paragraphs 48 et seq. of the Director-General's report of 21 May 1999.

9. In the first place, under section 5 of the Order, restrictions to exercise powers relating to requisition for personal service under the Acts are to be effective only "until and unless any further directive is issued".

10. Secondly, the Order makes two exceptions under section 5(a) and (b), the language of which corresponds in part to that of Convention No. 29. Exception (a) reproduces the essential wording of the exception from the scope of the Convention made in its Article 2(2)(d) for emergencies. But exception (b) provides for "requisition for personal service in work or service which is of important direct interest for the community and general public and is of present or imminent necessity, and for which it has been impossible to obtain voluntary labour by offer of usual rates of wages and which will not lay too heavy a burden upon the present population". This provision is incompatible with the requirements of the Convention for several reasons.

11. While the wording of exception (b) reflects part of Article 10 of the Convention, it does not observe the conditions laid down in paragraph 2(d) and (e) thereof "that the work or service will not entail the removal of the workers from their place of habitual residence" and "that the execution of the work or the rendering of the service will be directed in accordance with the exigencies of religion, social life and agriculture".

12. More importantly, it is indicated in paragraph 1 of Article 10 of the Convention that forced or compulsory labour of the kind envisaged under this Article "shall be progressively abolished". As noted by the Commission of Inquiry in paragraph 472 of its report, Article 10 is part of a series of provisions containing conditions and guarantees "to restrict and regulate recourse to compulsory labour pending its suppression", that is, during the "transitional period" provided for in Article 1(2) of the Convention. In this regard, the Committee recalls its earlier finding that since the Convention, adopted in 1930, calls for the suppression of forced labour within the shortest possible period, to invoke at the current time (69 years after its adoption) the notion that certain forms of forced or compulsory labour comply with one of the requirements of this set of provisions, is to disregard the transitional function of these provisions and contradict the spirit of the Convention. In the view of the Committee, use of a form of forced or compulsory labour falling within the scope of the Convention as defined in Article 2 may no longer be justified by invoking observance of the provisions of Article 1, paragraph 2, and Articles 4 to 24, although the absolute prohibitions contained in these provisions remain binding upon the States having ratified the Convention. The Commission of Inquiry in its report shared this view, having regard also to the status of the abolition of forced or compulsory labour in general international law as a peremptory norm from which no derogation is permitted.

13. Moreover, in paragraph 472 of its findings as to compliance with the Convention, the Commission of Inquiry noted that:

... in the present case, the undertaking under Article 1(1) of the Convention to suppress the use of forced or compulsory labour in all its forms within the shortest possible period precludes the Government from having recourse to legislation that it had over many years declared obsolete and not applied.

14. In providing for the exercise of powers to impose compulsory labour under an exception patterned after Article 10, paragraph 2(a) to (c), of the Convention, the Order of 14 May 1999 observes neither the conditions laid down in paragraph 2(d) and (e) of Article 10 itself nor the transitional character of that provision; a fortiori, it fails to ensure, as called for by the Commission of Inquiry in its recommendations under paragraph 539(b), "that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military".

15. In its memorandum of 7 June 1999, the Government stated that Order No. 1/99 "specifically orders ... that any and all unpaid or compulsory labour be terminated henceforth". In fact, the Order does not refer to "any and all unpaid or compulsory labour", but only to the exercise of powers under the Village Act and the Towns Act. The Commission of Inquiry pointed out in paragraph 539(b) of its report that in national practice "the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or the Towns Act". This is confirmed by information available on actual practice followed by military authorities since the publication of the report of the Commission of Inquiry (see Part B below), including orders for the contribution of labour issued both before and after 14 May 1999 without ever referring to the Village Act or the Towns Act or any other legal basis.

16. In conclusion, the concrete measures called for by the Commission of Inquiry "to ensure that nobody is compelled to work against his or her will" have not yet been taken.

B. Information available on actual practice

(a) August 1998 to mid-May 1999

17. In his report dated 21 May 1999 to the members of the Governing Body, the Director-General indicated that all information on actual practice that was received (from workers' and employers' organizations, intergovernmental organizations and governments of member States of the ILO) in reply to his request, referred to continued widespread use of forced labour by the authorities, in particular by the military.

18. There is an abundance of information of concrete instances of recourse to forced labour between August 1998 and April 1999, including a great number of written, official orders from either the army or the representatives of the administration demanding that village heads provide villagers to perform forced labour. Like the earlier orders, those issued after July 1998 never refer to any legal basis for the authority exercised.

19. Forced labour has continued to be imposed for portering, military camp work and other work in support of the military, work on agricultural and other production projects undertaken by the military, the construction and maintenance of roads, railways and bridges, and other infrastructure work ranging from digging canals and building dykes to building pagodas. Information reflected in the Director-General's report included details of a number of cases in which forced labour is reported to have been imposed in conditions of extreme brutality, involving the destruction of villages, torture, rape, the maiming and killing of exhausted, sick or wounded porters and (in one case) of a non-cooperative village head, and the use of civilians, including women and children, as minesweepers and human shields. More generally, the conditions in which forced labour is imposed show utter disregard for the dignity, health and basic needs of the victims.

(b) The Government's comments of 7 June 1999

20. In its memorandum dated 7 June 1999, the Government states that the Director-General's report of 21 May:

... is full of unfounded and biased charges deliberately levelled at Myanmar and the Myanmar Government.

The alleged facts in this report are manifestly false accusations concocted with evil intent to bring about the destruction of Myanmar by Myanmar expatriate organizations abroad and renegade groups that oppose all measures undertaken by the Myanmar Government. They are also based on blatantly false accusations made verbally, in writing and in the form of announcements by the National League for Democracy (NLD) ...

At present the Government is implementing construction projects with systematic planning and proper budget appropriations. Moreover most of the work being done on these projects is through the use of mechanized implements and machinery. In any project where human labour has to be unavoidably employed, there is a budget allotment for payment of wages to the workers, Any worker so employed is paid fair wages and there is not a single instance or a shred of evidence that forced labour is being used in these projects.

Work on the highways under construction in various regions, including the union highway in the Shan State, and new railroads being laid, are being done by servicemen of the armed forces. There is not a single civilian working on them.

Any jobs in which the people are involved are confined to the digging of small irrigation ditches to convey water to their own private cultivation plots. The larger state projects for the building of irrigation canals and dams do not use forced or conscripted labour of civilians. As stated, if people are at work at all, they are working in their own interest and according to their own plans and schedules on their privately owned plots of land.

State construction projects employ only military servicemen. So the accusation that the Government is using forced labour on these projects is baseless and flagrantly false. Since only members of the armed forces are employed in the construction of rail and motor roads, to say that forced labour is being used is utterly meaningless.

Other ongoing projects such as the reclamation of vacant and fallow lands and the construction of residential housing and hotels are all ventures by private entrepreneurs who have made capital investments. The use of forced labour in such cases is totally out of the question. In fact when incidents arise over labour grievances, the Government stands firmly on the side of the workers in settling such disputes.

Concerning the charge that the army conscripts porters in its military operations, it could be said that this was the practice in former times when the insurgencies were rampant. But the fact remains that these porters were always paid and the defence budget always had an allotment for payment of their wages. These porters enjoyed the same rights as a soldier. He was given the same rations and paid the same wages. Moreover, a porter, if wounded, obtained equal compensation with a serving soldier and he was entitled to the same hardship allowances. But this issue of military porters is no longer relevant and has become a non-issue since military operations are no longer an urgent necessity.

21. The Committee takes due note that the Government in its statement denies what has been established both by the Commission of Inquiry's findings of July 1998 and by a wealth of concurring information for the period August 1998 to April 1999 supplied by a variety of sources, as well as copies of orders from the army itself or representatives of the administration, as reflected in the Director-General's report of 21 May 1999. The Committee further notes that the assertions quoted above from the Government's memorandum of 7 June 1999 are contradicted inter alia by copies of military orders issued at about the same time that have been submitted by the ICFTU.

(c) The practice since mid-May 1999

22. In its observations dated 19 October 1999, the ICFTU indicates that over one year after the publication of the report of the Commission of Inquiry, and contrary to its repeated public commitments, the Government has still not desisted from the large-scale and systematic use of forced labour, which has continued and continues to be imposed on the civilian population, as evidenced by a set of recent orders issued by the military and/or bodies under its direct control.

23. As demonstrated by these orders, army officers have continued, after 14 May 1999, to demand that village heads provide labourers for cultivating food for the army, for road work, for military portering, as well as to supply identified army camps with a steady, rotating supply of forced labourers used as servants, messengers, sentries, builders and for a variety of other duties. The ICFTU stresses that such labourers are not allowed, under threat of being shot at, to leave army premises until their replacement has arrived and that repeated failure to comply with the orders can result in the arrest and torture of village elders.

24. The ICFTU has also submitted a report pointing at the use of forced labour in August 1999 for repair and maintenance of the Ye-Tavoy railway road, and a study of the 1999 report of the United Nations Special Rapporteur on Myanmar, which identifies direct financial profit for the army as being at times the sole purpose of forced labour. In this connection, the ICFTU recalls, from the military orders submitted, the forced conscription, by an Order of 12 June 1999, of persons with cattle and ploughs to work on land controlled by a battalion commander in the Kawkareik region as an example confirming the Special Rapporteur's analysis of the exploitation of farmers in the context of land confiscation.

25. While the Government has not commented on the observations made by the ICFTU dated 19 October, the Committee notes that, as pointed out before by the ICFTU in relation to an earlier set of military orders, the orders submitted are quasi-identical in style and content to the hundreds of forced labour orders which the Commission of Inquiry examined and found to be authentic in the course of its investigation.

26. In conclusion, there is no evidence that actual practice has changed since the Commission of Inquiry presented its report; on the contrary the exaction of forced or compulsory labour by the authorities has continued and is well documented.

III. Enforcement

27. In paragraph 539(c) of its recommendations the Commission of Inquiry urged the Government to take the necessary steps to ensure:

... that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced labour or compulsory labour be strictly enforced, in conformity with Article 25 of the Convention. This requires thorough investigation, prosecution and adequate punishment of those found guilty.

28. In its memorandum of 7 June 1999, the Government draws attention to paragraph 6 of Order 1/99 of 14 May 1999 which reads: "any person who fails to abide by this Order shall have action taken against him under existing laws". This, according to the Government, places "beyond all reasonable doubt that offenders will be punished under section 374 of the Penal Code".

29. The Committee notes that section 6 of Order 1/99 refers neither to the exaction of forced labour nor to punishment under section 374 of the Penal Code, but specifically to failure to abide by the Order and to action "under existing laws". The Committee further recalls that the Order does not generally prohibit the exaction of forced or compulsory labour, but specifically restricts the use of powers under the Village and Towns Acts, while military orders calling for the supply of forced labour do not refer to any legal basis.

30. In practice, no action whatsoever under section 374 of the Penal Code has so far been brought to the knowledge of the Committee.

31. It is relevant to recall in this connection that the continued exaction of forced or compulsory labour by the authorities was flatly denied by the Government in its memorandum of 7 June 1999, echoing the similar denial made by Lt. General Khin Nyunt in his address to the ASEAN Labour Ministers Meeting on 14 May 1999, where he referred to "misconception and misunderstanding of the situation and the mentality of our people" who "have voluntarily contributed labour" for "immediate material benefit" and "merit for future life cycles"; then again, "to dispel these wrong impressions", the Government had "issued instructions that only remunerated labour must be used in infrastructure projects", while at the same time "we are now mainly using our military personnel".

32. As pointed out before by a Governing Body Committee in 1994, by the present Committee in its subsequent observations under the Convention and by the Commission of Inquiry in concluding its recommendations under paragraph 539 of its report, the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government's statements, is all the more likely to occur in actual recruitment by local or military officials. The power to impose compulsory labour will not cease to be taken for granted unless those used to exercising it are actually brought to face criminal responsibility.

33. The Committee deplores the continued brutal imposition of forced labour on the civilian population by military officers in conditions of apparent impunity; the failure by the Government to implement the three recommendations of the Commission of Inquiry; and persistent failure by Myanmar to observe the Forced Labour Convention, 1930 (No. 29). In its concluding observations, the Commission of Inquiry noted that the experience of the past years tended to prove that the establishment of a government freely chosen by the people and the submission of all public authorities to the rule of law were in practice indispensable prerequisites for the suppression of forced labour in Myanmar. The Committee urges the Government to implement the recommendations of the Commission of Inquiry, to halt the scourge of forced labour and to restore its credibility within the international community as a government which is prepared to comply with its international obligations.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

1. The Committee recalls that a complaint under article 26 of the Constitution was submitted in 1996, alleging failure by the Government of Myanmar to observe the present Convention, and that a Commission of Inquiry was established to examine the complaint. The Committee recalls that it has made comments on the observance of the Convention for many years, and that an earlier representation under article 24 of the Constitution was submitted in 1993, alleging violation of the Convention, and concluded in 1994 with the finding that there were substantial violations. The Committee notes further that the Commission of Inquiry completed its work in August 1998, and that its report was submitted to the Governing Body of the International Labour Office at its 273rd (November 1998) Session.

2. The Committee notes that, at the conclusion of its work, the Commission of Inquiry adopted detailed conclusions and recommendations, including the following:

528. There is abundant evidence before the Commission showing the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military for portering, the construction, maintenance and servicing of military camps, other work in support of the military, work on agriculture, logging and other production projects undertaken by the authorities or the military, sometimes for the profit of private individuals, the construction and maintenance of roads, railways and bridges, other infrastructure work and a range of other tasks, none of which comes under any of the exceptions listed in Article 2(2) of the Convention.

3. The Commission's report concludes further that "Forced labour in Myanmar is widely performed by women, children and elderly persons as well as persons otherwise unfit for work" (paragraph 531). It adds:

533. Forced labour is a heavy burden on the general population in Myanmar, preventing farmers from tending to the needs of their holdings and children from attending school; it falls most heavily on landless labourers and the poorer sections of the population, which depend on hiring out their labour for subsistence and generally have no means to comply with various money demands made by the authorities in lieu of, or over and above, the exaction of forced labour. The impossibility of making a living because of the amount of forced labour exacted is a frequent reason for fleeing the country.

534. The burden of forced labour also appears to be particularly great for non-Burman ethnic groups, especially in areas where there is a strong military presence, and for the Muslim minority, including the Rohingyas.

535. All the information and evidence before the Commission shows utter disregard by the authorities for the safety and health as well as the basic needs of the people performing forced or compulsory labour. Porters, including women, are often sent ahead in particularly dangerous situations as in suspected minefields, and many are killed or injured this way. Porters are rarely given medical treatment of any kind; injuries to shoulders, backs and feet are frequent, but medical treatment is minimal or non-existent and some sick or injured are left behind in the jungle. Similarly, on road building projects, injuries are in most cases not treated, and deaths from sickness and work accidents are frequent on some projects. Forced labourers, including those sick or injured, are frequently beaten or otherwise physically abused by soldiers, resulting in serious injuries; some are killed, and women performing compulsory labour are raped or otherwise sexually abused by soldiers. Forced labourers are, in most cases, not supplied with food ...

536. In conclusion, the obligation under Article 1, paragraph 1, of the Convention to suppress the use of forced or compulsory labour is violated in Myanmar in national law, in particular by the Village Act and the Towns Act, as well as in actual practice in a widespread and systematic manner, with total disregard for the human dignity, safety and health and basic needs of the people of Myanmar.

537. Concurrently, the Government violates its obligation under Article 25 of the Convention to ensure that the penalties imposed by law for the illegal exaction of forced or compulsory labour are both really adequate and strictly enforced. While section 374 of the Penal Code provides for the punishment of those unlawfully compelling any person to labour against the will of that person, that provision does not appear to be ever applied in practice, even where the methods used for rounding up people do not follow the provisions of the Village Act or the Towns Act, which are in any event never referred to in practice.

538. A State which supports, instigates, accepts or tolerates forced labour on its territory commits a wrongful act and engages its responsibility for the violation of a peremptory norm in international law. Whatever may be the position in national law with regard to the exaction of forced or compulsory labour and the punishment of those responsible for it, any person who violates the prohibition of recourse to forced labour under the Convention is guilty of an international crime that is also, if committed in a widespread or systematic manner, a crime against humanity.

4. The Commission of Inquiry has made the following recommendations:

539. In view of the Government's flagrant and persistent failure to comply with the Convention, the Commission urges the Government to take the necessary steps to ensure:

(a) that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Forced Labour Convention, 1930 (No. 29) as already requested by the Committee of Experts on the Application of Conventions and Recommendations and promised by the Government for over 30 years, and again announced in the Government's observations on the complaint. This should be done without further delay and completed at the very latest by 1 May 1999;

(b) that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military. This is all the more important since the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or Towns Act. Thus, besides amending the legislation, concrete action needs to be taken immediately for each and every of the many fields of forced labour examined in Chapters 12 and 13 above to stop the present practice. This must not be done by secret directives, which are against the rule of law and have been ineffective, but through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. Also, action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required;

(c) that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced, in conformity with Article 25 of the Convention. This requires thorough investigation, prosecution and adequate punishment of those found guilty. As pointed out in 1994 by the Governing Body committee set up to consider the representation made by the ICFTU under article 24 of the ILO Constitution, alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), the penal prosecution of those resorting to coercion appeared all the more important since the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government's statements to the committee, was all the more likely to occur in actual recruitment by local or military officials. The power to impose compulsory labour will not cease to be taken for granted unless those used to exercising it are actually brought to face criminal responsibility.

540. The recommendations made by the Commission require action to be taken by the Government of Myanmar without delay. The task of the Commission of Inquiry is completed by the signature of its report, but it is desirable that the International Labour Organization should be kept informed of the progress made in giving effect to the recommendations of the Commission. The Commission therefore recommends that the Government of Myanmar should indicate regularly in its reports under article 22 of the Constitution of the International Labour Organization concerning the measures taken by it to give effect to the provisions of the Forced Labour Convention, 1930 (No. 29), the action taken during the period under review to give effect to the recommendations contained in the present report. In addition, the Government may wish to include in its reports information on the state of national law and practice with regard to compulsory military service.

5. The Committee notes also that the Government stated, in its response of 23 September 1998 to the Director-General after receiving the report, that it considers the allegations unfounded and politically motivated. It indicates, however, that "the Myanmar authorities have reviewed the Village Act and the Towns Act several times on their own initiatives so as to bring in line with present-day conditions in the country as well as to fulfil Myanmar's obligations ... The authorities, therefore, will do their utmost to complete the process within the time-frame referred to in the Report. ... (W)e do not see any difficulty in implementing the Recommendations contained in paragraph 539 of the Report."

6. The Committee notes the conclusions and recommendations of the Commission of Inquiry, which confirm and expand its own previous conclusions as to the Government's failure to comply with this fundamental Convention, the findings of the Conference Committee on the Application of Standards, as well as the findings of the Governing Body when it examined the representation. It notes further the Government's expression of willingness to implement the recommendations contained in the report of the Commission of Inquiry. It urges the Government to do so, not simply in order to apply the Convention, but most of all to save its own citizens from the suffering and the impediments to development which have been so clearly outlined in the Commission's report. It requests the Government to provide detailed information on the measures it is taking to apply the recommendations and the Convention, and urges it to have recourse to the assistance of the International Labour Office in this effort. In this respect, it notes that when it considered the report of the Commission of Inquiry, the Governing Body asked the Director-General to submit an interim progress report on the implementation of the Convention to the Governing Body at its 274th (March 1999) Session; the Committee expresses the firm hope that the Government will very shortly be in a position to indicate, to the Governing Body, to the Conference and to the present Committee, that it has complied fully with the Convention.

[The Government is asked to supply full particulars to the Conference at its 87th Session and to report in detail in 1999.]

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

Further to its previous comments concerning the observance of the Convention by Myanmar, the Committee has taken note of the discussion that took place in June 1996, at the Conference Committee, which noted the Government's persistent failure to implement the Convention. The Committee notes that a progress report on measures taken by the Government to abolish recourse to forced labour was received from the Government on 18 October 1996. The Committee further notes that by letter dated 20 June 1996 addressed to the Director-General of the ILO, 25 Workers' delegates to the International Labour Conference presented a complaint under article 26 of the Constitution against the Government of Myanmar for non-observance of the Convention, that a supplementary communication from the complainants was received on 31 October 1996, and that the Governing Body of the ILO, at its 267th Session in November 1996, decided that the Government of Myanmar should be requested by the Director-General to communicate its observations on the complaint by 31 January 1997.

In the circumstances, and pending consideration of the complaint made under article 26 of the Constitution, the Committee defers its examination of the observance of the Convention by Myanmar.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

Compulsory porterage and imposition of labour for public works

1. Further to the discussion which took place at the Conference Committee in 1995 on the observance of the Convention by Myanmar, the Committee has taken note of the Government's report.

2. In comments made for a considerable number of years, the Committee has noted that section 8(1)(g), (n) and (o), read together with sections 11(d) and 12 of the Village Act (1908) and section 7(1)(m), read together with sections 9(b) and 9A of the Towns Act (1907), provide for the exaction of labour and services, including porterage service, under the menace of a penalty from residents who have not offered themselves voluntarily. In 1991, the Committee noted observations submitted by the International Confederation of Free Trade Unions (ICFTU) alleging that the practice of compulsory portering was widespread in the country.

3. In 1993, the Committee also noted in the report by a Special Rapporteur on the situation of human rights in Myanmar submitted to the United Nations Commission on Human Rights at its 49th Session, February-March 1993 (document E/CN.4/1993/37 of 17 February 1993) the testimony of persons taken to provide labour in the construction of railroads (Aungban-Loikaw railroad) and of roads or the clearing of jungle areas for the military. Further to the Government's indications that this labour was provided voluntarily following a tradition which goes back thousands of years, the Committee pointed out in its last observation that the provisions of the Village Act and the Towns Act mentioned in point 2 above confer sweeping powers on every headman to requisition residents to assist him in the execution of his public duties. Where such powers exist, it is difficult to establish that residents performing work at the request of the authorities are doing so voluntarily.

4. In 1993, the ICFTU made a representation under article 24 of the ILO Constitution alleging non-observance of the Convention and, in February 1995, the Committee noted the conclusions and recommendations made by the Committee set up by the Governing Body to examine this representation, which were adopted by the Governing Body at its 261st Session (November 1994). The Committee set up by the Governing Body observed that the exaction of labour and services under the Village Act and the Towns Act is contrary to the Convention, ratified by Myanmar in 1955, and the Governing Body urged the Government to take the necessary steps:

(i) to ensure that the relevant legislative texts, in particular the Village Act and the Towns Act, are brought into line with the Convention; and

(ii) to ensure that the formal repeal of the powers to impose compulsory labour be followed up in practice and that those resorting to coercion in the recruitment of labour be punished.

5. The Committee further noted the Government's statement at the 261st Session of the Governing Body, indicating that Myanmar was undergoing a major transformation in changing from one political and economic system to another and that a basic step in this process was the amendment of laws which no longer pertain to current circumstances and situations. At the Conference Committee in June 1995, the Government representative likewise indicated that in compliance with the request from the Governing Body, "to ensure that the relevant legislative texts, in particular the Village Act and the Towns Act, are brought in line with the Convention" and "to ensure that formal repeal of powers to impose compulsory labour be followed up in practice and that those resorting to coercion in the recruitment of labour be punished", the Government had started the process of amending these laws.

6. In a special paragraph of its report, the Conference Committee in 1995 called upon the Government to urgently repeal the offensive legal provisions under the Village Act and the Towns Act 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 in line with Convention No. 29.

7. The Committee notes that no such details have been provided by the Government. In its summary report, received 31 October 1995, the Government, referring to the provisions of Article 2(2)(b) and (d) of the Convention, concerning "normal civic obligations" and "work or service exacted in cases of emergencies", once more states that in Myanmar it is an accepted concept that voluntary contribution of labour for community development such as construction of pagodas, monasteries, schools, bridges, roads, railroads, etc, is a kind of donation and meritorious which is good not only for the present life but also for the future life as well. So, in the Government's view, the term "forced labour" is not applicable to the provisions of section 11(d) of the Village Act and section 9 of the Towns Act. Besides, the Village Act and the Towns Act, administered by the General Administration Department, "are under review to be in accordance with the present situation in Myanmar".

8. The Committee notes these indications with concern. Recalling that in its reports on the application of the Convention, the Government has indicated ever since 1967 that the authorities no longer exercised the powers vested in them under the provisions in question of the Village Act and Towns Act, which were established under colonial rule, did not meet the standard and the needs of the country's new social order and were obsolete and soon to be repealed, the Committee in its previous observation expressed the hope that this would now be done and that the Government would supply full details on the steps taken both as regards the formal repeal of the powers to impose compulsory labour and the necessary follow-up action, with strict punishment of those resorting to coercion in the recruitment of labour. As pointed out by the Governing Body Committee, this follow-up appears all the more important since the blurring of the distinction between compulsory and voluntary labour, recurrent through the Government's statements to the Committee, is all the more likely to occur also in actual recruitment by local or military officials. The 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.

[The Government is asked to supply full particulars to the Conference at its 83rd Session.]

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

1. Compulsory porterage. In comments made for a considerable number of years, the Committee has noted that section 8(1)(g), (n) and (o), read together with sections 11(d) and 12 of the Village Act (1908) and section 7(1), (m), read together with sections 9(b) and 9A of the Towns Act (1907), provide for the exaction of labour and services, in particular porterage service, under the menace of a penalty from residents who have not offered themselves voluntarily. In 1991, the Committee noted observations submitted by the International Confederation of Free Trade Unions (ICFTU) alleging that the practice of compulsory portering was widespread in the country. In 1993, the ICFTU made a representation under article 24 of the ILO Constitution alleging non-observance of the Convention, and the Committee suspended consideration of this matter, pending the examination of the representation by the Governing Body. The Committee has now taken note of the conclusions and recommendations made by the Committee set up by the Governing Body to examine this representation, which were adopted by the Governing Body at its 261st Session (November 1994). The Committee set up by the Governing Body observed that the exaction of labour and services, in particular porterage service, under the Village Act and the Towns Act is contrary to the Convention, ratified by Myanmar in 1955, and the Governing Body urged the Government to take the necessary steps:

(i) to ensure that the relevant legislative texts, in particular the Village Act and the Towns Act, are brought into line with the Convention; and

(ii) to ensure that the formal repeal of the powers to impose compulsory labour be followed up in practice and that those resorting to coercion in the recruitment of labour be punished.

The Committee notes the Government's statement at the 261st Session of the Governing Body, indicating that Myanmar was undergoing a major transformation in changing from one political and economic system to another and that a basic step in this process was the amendment of laws which no longer pertain to current circumstances and situations. Recalling that in its reports on the application of the Convention, the Government has indicated ever since 1967 that the authorities no longer exercised the powers vested in them under the provisions in question of the Village Act and Towns Act, which were established under colonial rule, did not meet the standard and the needs of the country's new social order and were obsolete and soon to be repealed, the Committee hopes that this will now be done and that the Government will supply full details on the steps taken both as regards the formal repeal of the powers to impose compulsory labour and the necessary follow-up action, with strict punishment of those resorting to coercion in the recruitment of labour. As pointed out by the Governing Body Committee, this follow-up appears all the more important since the blurring of the distinction between compulsory and voluntary labour, recurrent through the Government's statements to the Committee, is all the more likely to occur also in actual recruitment by local or military officials.

2. Imposition of labour for public works. In its previous observation, the Committee noted the report by a Special Rapporteur on the situation of human rights in Myanmar submitted to the United Nations Commission on Human Rights at its 49th Session, February-March 1993 (document E/CN.4/1993/37 of 17 February 1993). In his report, the Special Rapporteur refers, inter alia, to the testimony of persons taken to provide labour in the construction of railroads (Aungban-Loikaw railroad) and of roads or the clearing of jungle areas for the military, that hundreds of persons were killed by the military when, as with porters, they were unable to carry loads and to continue the hard labour. The labour projects reportedly included two major railway projects, other border development projects of the Government, particularly along the Thai-Myanmar border and labour for the military, particularly in the areas of conflict in the Karen, Karenni, Shan and Mon areas.

It was reported that the labourers died frequently as a result of constant beatings, unsanitary conditions, lack of food and lack of medical treatment once they became sick or wounded and unable to continue work. Witnesses also provided information that some friends or relatives who returned from the work in the border development projects died afterwards as a result of the wounds and diseases contracted during their labour.

The Committee requested the Government to comment on the detailed testimony reported by the UN Special Rapporteur.

The Committee notes that no report has been sent by the Government under article 22 of the Constitution on the application of the Convention; the Government has, however, addressed these matters in its written statement and additional detailed statement presented in May and October 1993 to the Governing Body Committee to consider matters relating to the observance of Convention No. 29.

In its written statement presented in May 1993 the Government indicates that allegations that the Myanmar authorities are using forced labour for the construction of railways, roads and bridges are false and based on fabrications by people who wish to denigrate the image of the Myanmar authorities and do not understand the tradition and culture of the Myanmar people. In Myanmar, voluntary contribution of labour to build shrines and religious temples, roads, bridges and clearing of obstruction on pathways is a tradition which goes back thousands of years. It is a common belief that the contribution of labour is a noble deed and that the merit attained from it contributes to a better personal well-being and spiritual strength. In the villages and in the border areas, Tatmadaw men (the Myanmar armed forces) and the local people in the region have been contributing voluntary labour towards building roads and bridges for the past four years or so. There is no coercion involved. In Myanmar history, there has never been "slave labour". Since the times of the Myanmar kings, many dams, irrigation works, lakes, etc., were built with labour contributed by all the people from the area. Accordingly those who accuse the Myanmar authorities of using forced labour patently reveal their ignorance of the Myanmar tradition and culture.

In its additional detailed statement, the Government specifies that allegations made on the use of forced labour for the railway projects in southern Shan State relate to the construction of two sections, from Aungban to Pinlaung and from Pinlaung to Loikaw. The purpose of this project is to promote and develop smooth and speedy transportation in the region for economic and social development. Labour contributed to this project was purely voluntary. The armed forces personnel (Tatmadaw) numbering 18,637 from military units stationed in the area and 799,447 working people from 33 wards and villages of Aungban township and 46 wards and villages of Pinlaung township contributed voluntary labour. Fifteen heavy machines belonging to the Public Works and Irrigation Department and Myanmar Timber Enterprises were utilized. In addition, technicians and labourers from the Myanmar Railways (state organization) also contributed their labour. For the purely voluntary labour contributed by the people of the region, the Government disbursed a lump sum of 10 million kyats (US$1.6 million) for the Aungban-Pinlaung sector and another 10 million kyats for the Pinlaung-Loikaw sector.

The Government adds that the entirely voluntary labour which contributed towards the construction of this railroad was witnessed by the members of the diplomatic corps in Yangon, who visited the construction site in January and May 1993. The members of the diplomatic corps met the people who contributed this labour and there were no instances where complaints were made to them.

The Government further considers that, under Article 2, paragraph 2(e), of the Convention, the building of the railroad can be regarded as a communal service performed by the members of the community for the members of the community in direct interest of the community. Prior to the construction of the project, consultation in a free and spontaneous manner was made with the people of the community and the project was carried out with spontaneous enthusiasm on their part to contribute their labour.

The Committee takes due note of these indications. As regards Article 2, paragraph 2(e), of the Convention, which exempts from the provisions of the Convention minor communal services, the Committee refers to paragraph 37 of its General Survey of 1979 on the Abolition of Forced Labour, where it recalled the criteria which determine the limits of this exception: the services must be minor services, i.e. relate primarily to maintenance work; and the services must be communal services, performed in the direct interest of the community and not relate to the execution of works intended to benefit a wider group. The construction of a railroad would not appear to meet either of these criteria, even where the third condition is met, namely that the members of the community or their direct representatives, must have the right to be consulted in regard to the need for such services.

The Committee further notes that the provisions of the Village Act and the Towns Act mentioned in point 1 above confer sweeping powers on every headman to requisition residents to assist him in the execution of his public duties. Where such powers exist, it is difficult to establish that residents performing work at the request of the authorities are doing so voluntarily.

The Committee accordingly hopes, with regard to public works projects as well as regarding porterage services, that the powers vested in the authorities under the Village Act and the Towns Act will now be repealed, and that the Government will supply full information on the measures taken to this effect as well as on the follow-up action mentioned in point 1 above.

[The Government is asked to report in detail by 1 September 1995, at the latest.]

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

1. In its previous comments the Committee noted the observations submitted on 17 January 1991 by the International Confederation of Free Trade Unions (ICFTU) alleging that the practice of compulsory portering was widespread in the country.

In this connection the Committee has taken note of the Report by a Special Rapporteur on the situation of human rights in Myanmar submitted to the United Nations Commission on Human Rights at its 49th Session, February-March 1993 (document E/CN.4/1993/37 of 17 February 1993). The Committee further notes that, by a communication of 25 January 1993, the International Confederation of Free Trade Unions, referring to article 24 of the ILO Constitution, made a representation alleging non-observance by Myanmar of the Convention. The Committee notes that at its 255th Session (March 1993) the Governing Body decided that the representation was receivable and set up a committee to examine it. Consequently the Committee is suspending examination of this matter, pending the conclusions of the above committee.

2. In relation to forced labour other than portering, the Committee notes that in his report the Special Rapporteur refers to the testimony of persons taken to provide labour in the construction of railroads (Aung Ban-Loikaw railroad) and of roads or the clearing of jungle areas for the military, that hundreds of persons were killed by the military when, as with porters, they were unable to carry loads and to continue the hard labour. The labour projects reportedly included two major railway projects, other border development projects of the Government, particularly along the Thai-Myanmar border, and labour for the military particularly in the areas of conflict in the Karen, Karenni, Shan, and Mon areas.

It was reported that the labourers died frequently as a result of constant beatings, unsanitary conditions, lack of food and lack of medical treatment, once they became sick or wounded and unable to continue work. Witnesses also provided information that some friends or relatives who returned from the work in the border development projects died afterwards as a result of the wounds and diseases contracted during their labour.

The Committee requests the Government to comment on the detailed testimony reported by the UN Special Rapporteur.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised previously:

1. Referring also to its observation under the Convention, the Committee recalls that it noted the Government's indications that section 9 of the Towns Act and section 11(d) of the Village Act, which empowered headmen or rural policemen to impose compulsory porterage on the labouring class, and paragraph 1044 of the rules made under the Prison Act which allowed the use of convict labour by private employers were obsolete and no longer applied and were to be reviewed by a newly instituted Law Commission so as to bring legislation into conformity with the Convention. In its last comments the Committee had noted the Government's indication that there were no new legislative or other measures affecting the application of the Convention and it expressed the hope that the necessary measures would be taken.

The Committee noted the information provided by the Government in its report for the period ending 30 June 1989, according to which the Labour Laws Review Committee has been reconstituted in July 1989 and every salient point raised by the Committee of Experts shall be taken into serious consideration in the process of reviewing the existing labour laws. The Committee trusts that the Government will be able in the near future to report that the necessary action has been taken.

2. Referring to its previous comments noting excerpts of the People's Council Act (Pyithu Hluttaw Act No. 8, 1974) the Committee again requests the Government to provide a copy of the whole text of the People's Council Act, whether in translation or in the original language.

3. In its 1979 General Survey on the Abolition of Forced Labour, the Committee noted that in a number of countries the status of certain persons in the service of the State, including career members of the armed forces, was governed by statutory provisions under which the right to leave the service was subject to authorisation. In some cases a link was made between the length of training received and that of service normally required before resignation was accepted. Since such restrictions on the freedom of workers to terminate their employment might have a bearing on the application of the Convention, the Committee previously requested the Government to supply information on national legislation and practice concerning the situation of the various categories of career members of the armed forces and of other persons in the service of the State, with regard, in particular, to the freedom to leave the service on their own initiative within a reasonable period, either at specified intervals or by giving notice. Since this information has been requested already for a number of years, the Committee trusts that the Government will not fail to supply details in its next report.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes that no report was received from the Government. The Committee must therefore repeat its previous observation on the following points:

The Committee had noted the comments of 17 January 1991 by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention and the information submitted in the annexed documents. In its comments the ICFTU indicated that the practice of compulsory portering is widespread in the country and involves many thousands of workers: the majority of porters used by the army are forcibly recruited and harshly exploited; rarely, if ever, paid; inadequately fed and cared for; required to carry excessive loads; and exposed to acute physical hardship and danger. According to the documents there is no formal regulation or supervision of the conditions of work of porters, which are, in practice, determined at the discretion of local military commanders. As a result many of them die or are killed in the course of forced labour, some are used as human shields during military actions, others are shot when trying to escape or are killed or abandoned when as a result of malnutrition or exhaustion they are no longer able to carry their load. The comprehensive documentation submitted by the ICFTU contained detailed and specific indications to back these allegations.

The Committee again expresses the hope that the Government will provide detailed comments on these allegations as well as full information on any measures adopted or contemplated to ensure observance of the Convention.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

1. Referring also to its observation under the Convention, the Committee recalls that it noted the Government's indications that section 9 of the Towns Act and section 11(d) of the Village Act, which empowered headmen or rural policemen to impose compulsory porterage on the labouring class, and paragraph 1044 of the rules made under the Prison Act which allowed the use of convict labour by private employers were obsolete and no longer applied and were to be reviewed by a newly instituted Law Commission so as to bring legislation into conformity with the Convention. In its last comments the Committee had noted the Government's indication that there were no new legislative or other measures affecting the application of the Convention and it expressed the hope that the necessary measures would be taken.

The Committee noted the information provided by the Government in its report for the period ending 30 June 1989, according to which the Labour Laws Review Committee has been reconstituted in July 1989 and every salient point raised by the Committee of Experts shall be taken into serious consideration in the process of reviewing the existing labour laws. The Committee trusts that the Government will be able in the near future to report that the necessary action has been taken.

2. Referring to its previous comments noting excerpts of the People's Council Act (Pyithu Hluttaw Act No. 8, 1974) the Committee again requests the Government to provide a copy of the whole text of the People's Council Act, whether in translation or in the original language.

3. In its 1979 General Survey on the Abolition of Forced Labour, the Committee noted that in a number of countries the status of certain persons in the service of the State, including career members of the armed forces, was governed by statutory provisions under which the right to leave the service was subject to authorisation. In some cases a link was made between the length of training received and that of service normally required before resignation was accepted. Since such restrictions on the freedom of workers to terminate their employment might have a bearing on the application of the Convention, the Committee previously requested the Government to supply information on national legislation and practice concerning the situation of the various categories of career members of the armed forces and of other persons in the service of the State, with regard, in particular, to the freedom to leave the service on their own initiative within a reasonable period, either at specified intervals or by giving notice. Since this information has been requested already for a number of years, the Committee trusts that the Government will not fail to supply details in its next report.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the comments of 17 January 1991 by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention and the information submitted in the annexed documents.

In its comments the ICFTU indicates that the practice of compulsory portering is widespread in the country and involves many thousands of workers: the majority of porters used by the army are forcibly recruited and harshly exploited; rarely, if ever, paid; inadequately fed and cared for; required to carry excessive loads; and exposed to acute physical hardship and danger. According to the documents there is no formal regulation or supervision of the conditions of work of porters, which are, in practice, determined at the discretion of local military commanders. As a result many of them die or are killed in the course of forced labour, some are used as human shields during military actions, others are shot when trying to escape or are killed or abandoned when as a result of malnutrition or exhaustion they are no longer able to carry their load.

The comprehensive documentation submitted by the ICFTU contains detailed and specific indications to back these allegations.

The Committee hopes that the Government will provide detailed comments on these allegations as well as full information on any meaures adopted or contemplated to ensure observance of the Convention.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

1. In its earlier comments, the Committee noted the Government's indications that section 9 of the Towns Act and section 11(d) of the Village Act, which empowered headmen or rural policemen to impose compulsory porterage on the labouring class, and paragraph 1044 of the rules made under the Prison Act which allowed the use of convict labour by private employers were obsolete and no longer applied and were to be reviewed by a newly instituted Law Commission so as to bring legislation into conformity with the Convention. In its last comments the Committee had noted the Government's indication that there were no new legislative or other measures affecting the application of the Convention and it expressed the hope that the necessary measures would be taken.

The Committee notes with interest the information provided by the Government in its report, according to which the Labour Laws Review Committee has been reconstituted in July 1989 and that every salient point raised by the Committee of Experts shall be taken into serious consideration in the process of reviewing the existing labour laws. The Committee trusts that the Government will be able in the near future to report that the necessary action has been taken.

2. Referring to its previous comments where it noted excerpts of the People's Council Act (Pyithu Hluttaw Act No. 8, 1974) the Committee again requests the Government to provide a copy of the whole text of the People's Council Act, whether in translation or in the original language.

3. In its 1979 General Survey on the Abolition of Forced Labour, the Committee noted that in a number of countries the status of certain persons in the service of the State, including career members of the armed forces, was governed by statutory provisions under which the right to leave the service was subject to authorisation. In some cases a link was made between the length of training received and that of service normally required before resignation was accepted. Since such restrictions on the freedom of workers to terminate their employment might have a bearing on the application of the Convention, the Committee previously requested the Government to supply information on national legislation and practice concerning the situation of the various categories of career members of the armed forces and of other persons in the service of the State, with regard, in particular, to the freedom to leave the service on their own initiative within a reasonable period, either at specified intervals or by giving notice. Since this information has been requested already for a number of years, the Committee trusts that the Government will not fail to supply details in its next report.