Forced Labour has been one of the daily human and trade union rights violations in modern day Burma by the military junta since1962. Forced Labour and Burma is like the head and tail of a coin. Forced Labour in Burma is a state-sponsored violation. Millions of people of Burma have been used for state projects of rail-road building, strategic-road construction, army' barrack building, army' run business-empire & agro-economy by the SLORC/SPDC of Burma.
One of the key result-oriented-strategies of the FTUB is to abolish forced labour in Burma. By doing so, first, FTUB has documented some of the forced labor violations, trade union & human rights violation cases committed by State Law and Order Restoration Council/State Peace and Development Council' (SLORC/SPDC) army-personnel, military officers and soldiers.
Secondly, FTU-B' Trade Unions Right and Human Rights Dept. (TUR-HR Dept.) has double-checked with case-collectors and victims of the forced labour, trade union & human rights cases. Thirdly, FTUB has reported to the International Confederation of Free Trade Unions (ICFTU) based in Brussels in Belgium. Finally, the ICFTU, a global union, as a dialogue-partner of ILO, has submitted to the International Labour Organization (ILO), a body of the United Nations, to examine the cases and violators of forced labour and TUR -HR.
As a result, in June 1999, the ILO Conference had adopted a Resolution on Burma, which addressed-legislative amendments, the end of forced labour in practice and the punishment by law of offenders - remained at the centre of the ILO’s demands towards the SPDC throughout the period June 1999 - June 2000. More over, the Commission Of Inquiry (COI) and High Level Team ( vHLT ) formed by the ILO and were sent to Burma to examine violations by the SLORC/ SPDC and to send report and recommendations to the ILO.
The Conference resolved that the issue should be considered by the Governing Body of the ILO in November 1999. Stating that the “government’s” attitude and behaviour were “grossly incompatible” with ILO membership, had decided that the “government” should cease to benefit from any technical ILO co-operation or assistance, “except for the purpose of direct assistance to implement immediately the recommendations” of the COI, until such time as they had been complied with. This, in effect, barred the SPDC from receiving any further invitation to attend activities organised by the ILO.
In addition, the Committee of Experts on the Application of Conventions and Recommendations had issued a report, based under article 22 of the Constitution, assessing the observance of Convention No. 29, and the implementation of the COI’s recommendations. The Committee considered, at the end of an extensive report, that none of the above-mentioned conditions had been fulfilled.
Intense debates have taken place within the ILO during this period as to how to force Burma to comply. As is widely known within the international trade union movement, expulsion of a Member State is impossible under the ILO Constitution. Much thought has therefore been given to the interpretation of Art. 33, which determines what happens when a Member (State) refuses to comply with the recommendations of a COI. It enables the Governing Body to recommend to the ILO Conference “such action as it may deem wise and expedient to secure compliance” with these recommendations1 . In practice, however, Art. 33, in which ultimately resides the “sanction effect” of the COI mechanism as a judicial procedure, has never been used.
Moreover, the regime now is refusing to follow up with their own legislation Order No. 1/99 of 14 May 1999 on Eradication of Forced Labor. This is a repeat of their refusal to recognize the election results they staged in 1990, proof that the regime does not want to improve the country or will not respond to political dialogue.
It seems clear, as a matter of common sense and experience, that the effective elimination of forced labour in Myanmar cannot be achieved without the cooperation of the authorities. And as was pointed out by the High-Level Team, such cooperation is indeed in the interest of the country and is indispensable for its modernization.
On our part, we have seen that the ILO has always been consistent in its willingness to continue that cooperation. Events happening at the United Nations Security Council (UNSC), in Burma and elsewhere suggest now is the time to act. Nonethless, the regime refuses to cooperate and the three options from Provisional Record 2 of the 95th Session (as listed below) need to be adopted and vigorously pushed forward.
Option 1: A binding ruling by the International Court of Justice (ICJ) under article 37(1) of the Constitution. 11 Reading this provision as a compromissory clause, (12) it enables Members to obtain a ruling in case of a dispute over interpretation of a Convention. Although it cannot be taken for granted that, in the framework of such an interpretation, the Court could order Myanmar to stop the prosecution of complainants, (13) any ruling would be binding and the judgment could be enforceable through the United Nations Security Council. This solution would not require a formal decision by the International Labour Conference and could be initiated by a Member at any time. In such a scenario, the result may depend on the framing of the issue and the argumentation presented by a Member or group of Members. While a Member would bring the case to the ICJ, it would be free to seek the legal assistance of the Office. Under the ICJ rules, the Court could invite the ILO to make a submission on the case, and the ILO could submit information on its own initiative.
Option 2: A decision through the establishment by the ILO of a tribunal under article 37(2) of the Constitution. A second option would be to establish an independent tribunal under article 37(2) of the Constitution “for the expeditious determination of any dispute or question relating to the interpretation of a Convention”. (14) While the ILO would have full control to manage its own interests in this case, it should be taken into account that, by its very nature, such a tribunal established on a purely ad hoc basis would require substantial time and involve substantial cost. Moreover, although any ruling would be binding, this option may not provide significant additional leverage since it would have to be enforced through ILO procedures, including article 33, which up to now have not, on their own, yielded the intended results. Since the Governing Body would need to submit rules providing for the appointment of such a tribunal to the Conference, 15 such a tribunal could be established at the earliest in June 2007.
Option 3: An advisory opinion from the International Court of Justice (ICJ); A third option would be for the ILO to exercise its undisputed right to request an advisory opinion of the International Court of Justice under the United Nations Charter and the Agreement between the United Nations and the ILO. (16) While an advisory opinion is not binding, it carries juridical weight. In contrast to option 1, a formal decision by the Governing Body, which could be taken at the earliest at its November 2006 session, would be a precondition for the ILO to seek an advisory opinion. Requests for advisory opinions do not enter the queue of contentious cases before the Court, and are therefore dealt with more quickly.
These three options are not necessarily mutually exclusive.
The ILO has consistently been the one place where the regime has been held to account for its violations of the rights of the Burmese people. Workers’, Employers’ and Governments’ delegations have worked together to demand these most flagrant and continuing violations come to an end. For that the people of our country applaud this body. Nontheless, the regime blatantly has defied the will of this body. It is time for the ILO act on the three Options mentioned in the Provisional Record (2) of the 95th Session.
Federation of Trade Unions - Burma
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