Transcript of recorded debate of the fourth sitting

International Labour Office, Thursday 19 November 1998, morning

Note: This is an unedited version and not an official record. The queries, missing names etc. will be corrected for the official fersion...

International Labour Office
273rd Session of the Governing Body and its committees
(Geneva, 5-20 November 1998)
Governing Body

The sitting opened at 10.55 a.m., with Mr. Akao in the Chair.

The CHAIRPERSON—We have started a bit late but we are waiting for the Employers' group to finish their consultations and I am told that they are on their way. Before I begin I should like to inform you what items are going to be taken up today. So we begin, as I announced yesterday, we begin with item 5, Myanmar, then I thought we could go back to the remaining items of yesterday afternoon but I understand that after item 5 we can deal with item 6 and then item 15 and then we will go back to the remaining items of yesterday which are items 4 and 14. Also please remember that the PFA Committee which was originally scheduled for yesterday afternoon was postponed to today so the PFA Committee is meeting at 2.30 this afternoon. That is the schedule that I have in mind and the order of the items to be taken up. Now the first item for this morning's session is item 5.

Item 5

Report of the Commission of Inquiry established to examine the complaint concerning the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), made by delegates to the 83rd Session (1996) of the Conference under article 26 of the Constitution of the ILO GB. 273/5

The CHAIRPERSON—The relevant document is GB.273/5 and there is an appendix, a very voluminous appendix to the document. On the back side of the document there is the Myanmar Government's reply to the Director-General concerning the report of the Commission of Inquiry and I hope that all of you received copies, voluminous copies, of the Commission's report which summarizes the issues related to the filing of the complaint and the appointment of the Commission as well as the measures subsequently taken by the Governing Body. What we are supposed to do today, what we are expected to do today, is contained in paragraph 5 of the document that I referred to. Paragraph 5 takes note of the report of the Commission and of the reply by the Government of Myanmar. This is what we are expected to do today. Now the floor is open, are there any members who wish to take the floor, Mr. Brett.

Mr. BRETT [Workers' delegate—UK]—I take the floor to comment on the report and the response of the Government of Myanmar. I think anyone who has read that document will find it a chilling condemnation of an inhuman Government's behaviour towards its own citizens. Without doubt it is a severe case we have before us and you have in that report the condemnation or the evidence to condemn what effectively it has been—physical abuse, torture, rape, murder—all used as means of coercion for the military to ensure forced labour and brings to the Government of Myanmar the slave labour of its citizens. In that sense, I think the whole Governing Body will condemn those activities and the authorities that perpetuated them. The question then is —of course, they reply—which I have to say I find something of a surprise. First thing I would like to do is to reject entirely the comments in the third paragraph by the Government of Myanmar that some Aorganizations from anti-government circles were politically motivated, highly biased, lacked objectivity and without any goodwill on the part of those organizations@. Well, the only part of that that I will accept is that it is very hard to feel any goodwill towards the Government of Burma and therefore I would plead guilty with those who were anxious to see evidence brought before this body that there was not a lot of goodwill towards the behaviour that was taking place. What the findings are, of course, complete vindication of those who put evidence forward. But I reject that they were politically motivated unless trying to ensure that governments live up to their obligations under the Conventions they ratify is some kind of crime. They were not biased. They were found to be accurate. They did not lack objectivity.

They brought horrific situation to the attention of esteemed jurists who in turn provide us with the report. I say some surprise at the response because the Government indicates that it is going to comply within the time-frame and the question is what does that mean. Can we take it at face value the words that we read? Now, of course, we must. Due process demands that we believe those things we may be sceptical about until such time that they are proven. And that, of course, is equally true about the question of forced labour and the complaints and the responses previously from the Government. And they were found to be wanting and that is what the Commission of Inquiry has found. A further question is what can we place by way trust in this response and, of course, if we have to trust it we have to accept its face value. What we do not have to do, I think, is to turn away and presume that it will happen. And therefore we have to see that the Burmese legislation is brought into conformity with the provision of article 29, that the SPDC has genuinely put an end to the use of forced labour and, interestingly, that they do enforce the penalties which exist within the Burmese Penal Code against those who perpetrated these events ? ? hearing of arrests and due process of law. These are all the things that the Burmese Government have indicated they would do.

What I would ask the Director-General is to ensure that the Government in Rangoon is brought to account to prove its words and that we will have before us in March a report on which we can perhaps be less sceptical about or perhaps fearfully it will show that we have not made the progress that is claimed. I think then we have to decide in the light of those circumstances what we then do. I do not believe this issue is ended by the receipt of this letter.

It is in itself, I suppose, a better sign than would have been a complete refusal to accept the recommendation. For that we have to be grateful and have to be pleased. But it is now for the Government of Burma to prove because the evidence so far in the inquiry is such that it proves beyond doubt that they have behaved in horrific ways—that those ways have ended. And I trust that the Director-General will make this clear to the Government in Rangoon and we will have a progress report in March and then I think, depending on that progress report—I am recognizing the due process has to end later than that then perhaps in June — we have both the Conference and the Governing Body—many of us can then make our judgement whether the Government of Burma has truly fulfilled its obligations.

Mr THUESING [Employers' delegate—Germany] Interpretation from German: — The Employers have also taken note of the answer from the Burmese Government and we consider that it is absolutely insufficient and unsatisfactory in all respect. We see no indications of change in the attitude of the Government of Myanmar and no readiness to have any cooperation, in the light of the very serious allegations. This is extremely worrying. However, I believe that in the presence situation I feel that the only think we can do is to act according to the point for decision and we can simply ask the Office to continue to pay further attention to this case and at the next meeting certainly the Office could report to the Governing Body on what the situation is. But as far as we can see it, with much regret, we have to realize we have reached the end of our procedure.

Mr. ? (Government, India)—I would like to make a brief statement on the fifth item on the agenda—the existence of forced labour and the negation of humanity. It is an affront to the cardinal principles of the ILO Constitution and the Declaration of Philadelphia of 1944. It is a denial of the dignity, beauty and worth of human existence. Whether it is denial of the right to freely move from one part of the country to another, whether it is denial or the violation of option to have an avocation of one's own choice, whether it is denial of the fundamental right to appropriate to oneself one's own labour or the price of one's own labour, is anathema to civilized human conscience and cannot be justified far less being supported in any form or substance. It deserves to be condemned and discarded lock, stock and barrel. The State is the agent of society and has the sacred and solemn obligation to promote, protect and preserve precious life and limb of every human being regardless of ? , regardless of caste, creed, community or religion. The State represents the most important engine of evolution, advancement and growth of all human beings. It will indeed be tragic if the State acts as an engine of repression. The State must provide a climate of opportunity and incentive where a thousand flowers and bloom in a multicolored garden of beauty and fragrance. The State cannot be a mute spectator of a process where a thousand petals of innocent boys and girls, men and women, wither away before blossoming to the full bloom of youth and manhood.

The entire report of the Commission of Inquiry set up the Governing Body at its 268th Session in March 1997 following a complaint filed by 25 Workers' delegates to the 83rd Session in June 1996 of the ILC deserves to be viewed in this perspective. The findings contained in the report are harrowing. There is abundant evidence before the Commission showing the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities for portering, construction, maintenance and servicing of military camps, work on agriculture, logging and other production projects undertaken by the authorities often for the unlawful gain of private individuals, construction and maintenance of road, railways, bridges, culverts and other infrastructure work and a wide range of other tasks none of which comes under the exceptions listed in sub-article 2 of Article 2 of the Forced Labour Convention, 1930 (No. 29) which the Government of Myanmar had ratified in March 1955 and which came into force on 4 March 1956. It is in this perspective that the recommendations made by the Commission ? ? and serious action by the Government of Myanmar as required under section 374 of the Penal Code read with Article 25 of the Convention. My delegation would like to endorse the clear and forceful statement made by the distinguished spokespersons of the Employers' and the Workers' groups in this regard. We would advocate total openness, transparency and credibility in securing compliance with the findings of the Commission of Inquiry at the earliest.

Mr. ? (Government, United Kingdom)—The Governments of Austria, Belgium, Canada, Denmark, France, Finland, Italy, the Netherlands, Norway, New Zealand, Poland, Switzerland and Sweden would like to associate themselves with this statement. We are deeply concerned at the findings of the Commission of Inquiry on forced labour in Burma which reveal the absolute authority of the military to call up labour using threats, physical abuse, torture, rape and murder to force compliance; that such practices have affected vulnerable sectors of a society, including pregnant women, children and the elderly and that the burden of forced labour falls most heavily on the poor and on ethnic minorities.

Such violations of the ILO's fundamental principles and the terms of Convention No. 29 are totally unacceptable. We regret that the Burmese regime did not allow the Commission of Inquiry to visit Burma. We condemn Burma's unacceptable record of gross and systematic human rights abuses. We note the Burmese reply to the Director-General and wish to make clear that the onus is now on Burma to demonstrate tangibly that it has addressed the concerns of the Commission and implemented its three recommendations—namely, that Burma's legislation be brought into conformity with the provisions of Convention No. 29, that the Burmese regime immediately put an end to the practice of forced labour, and that the Burmese regime immediately enforce the penalties which exist in the Burmese penal code for using of forced labour.

The Governments I have listed call on the Director-General to transmit a letter to Rangoon noting the Burmese Government's reply to the Commission and requesting it to present an account of the measures it has taken to implement the recommendations through the Director-General to the Governing Body in March next year. We would be grateful if the Director-General could ensure that his report to the Governing Body includes reliable information from other sources including the social partners. We must act to ensure that the Commission's recommendations are implemented and the ILO's procedures followed to the letter. If by March it is clear that the Burmese regime has not fully implemented all of the report's recommendations within the deadlines set by the Commission we will need to examine all other options that are available to us to ensure compliance.

To save me from intervening a second time I would like to make one further comment in a purely national capacity. I would like to draw your attention to a speech made by my Minister of State, Mr. Derek Fatchett, on 15 October, at a conference on Burma hosted by Christian Aid. At that conference, my Minister expressed his concern about the Commission of Inquiry's findings and said, and I quote, that the ILO should consider all options for action including suspension of Burma from the Organization.

Mr. SAMET [Government, USA]—The United States of America would also associate itself with the joint statement delivered by the United Kingdom. We would obviously also associate ourselves with the statement made by the representative of India, as well as the concerns expressed by the Worker and Employer representatives here.

Under the circumstances we find ourselves it is very difficult to put into words what we are dealing with here today. We are dealing with a most fundamental reputation of all the values of this Organization and each and every person associated with this Organization, and in that regard we believe that the circumstances presented here require us — demand us—to not only state our outrage but to think further on how we might act to relieve the suffering of the Burmese people.

It is clearly presented in a report that can only be described as chilling. I would like to cite this report in our statement. Paragraph 535 of that report states: “All the information and evidence before the Commission shows utter disregard by the authorities to 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 in 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. They sometimes even have to bring food, water, bamboo and wood to the military. Porters may receive minimal rations of rotten rice but be prevented from drinking water. No clothing or adequate footwear is provided to porters, including those rounded up without prior warning. At night, porters are kept in bunkers or have to sleep in the open, without shelter or blankets provided, even in cold or wet situations, and often tied together in groups. Forced labourers on road and railway constructions have to make their own arrangements for shelter as well as other basic needs”. Reading this paragraph, there is simply no adequate response that can be placed towards here.

We also have to recognize, as we have, that every single avenue of procedure in this Organization has now been exhausted to bring this to the attention of the Burmese regime. I think we are also compelled to recognize what is contained in paragraph 538 in which this Commission of Inquiry states: 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 of national law with regard to the exaction of forced or compulsory labour, then 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 systematic manner—a crime against humanity. That refers to the standards contained within the charter of the Nuremberg Tribunal.

Now the recommendations from the Commission of Inquiry are quite clear to us. They are suggesting firstly that by 1 May 1999 the legal situation in Burma be changed. That is of course important but I think it has to be recognized that that recommendation comes in the context, in our view, that this is a lawless regime and one can in fact question whether any law in fact exists in Burma. We are compelled to put that recommendation in the context of reality. We are also compelled to recognize that the Commission of Inquiry is quite clear that the practice, the reality must stopped and they recommend that it be stopped without delay and how could anyone but agree if they had read what I have restated to this Governing Body?

We certainly agree that the Director-General has the most serious and solemn obligation to this Governing Body to this Organization, to the world community to follow this matter, to report back to this Organization, this Governing Body on this matter at our March meeting and we would further recommend that the Director-General be asked to assure us that he has distributed this information, these findings to every appropriate organization that ought to be made aware of them. That he also be asked to consider what appropriate reference might be made to the concern expressed by the Commission of Inquiry as to the issues presented by the Charter to the Nuremberg Tribunal. I think we are compelled to take those references as seriously as the matters are to which they refer.

Mr. Chairman, it is often stated in our work that the credibility of this Organization is at stake and we have made many references to that in our recent work and I believe we have tried together to assure the credibility and that we have made great progress in our recent efforts. But there is no clearer statement, no clearer situation that demands the strongest possible response from this Organization and we want to work with all those here to share this concern. I would simply close our statement on this by a final reference to the concluding observations of this Commission because it is obvious that this Commission of Inquiry has presented us with a very clear, very compelling summation of what we are dealing with. That is, in the final paragraph 543, this Commission states: “This report reveals a saga of untold misery and suffering, oppression and exploitation of large sections of the population inhabiting Burma by the Government, military and other public officers. It is a story of gross denial of human rights to which the people of Burma have been subjected, particularly since 1988 and from which they find no escape except fleeing from the country. The Government, the military and the administrative seem oblivious to the human rights of the people and are trampling upon them with impunity”.

I think that we must follow this issue with all possible energy and focus and that we will be compelled to respond accordingly in March if this practice has not ceased and the basic human rights of the people of that country are not being respected.

Interpretation from German: Mr. ? (Government, Germany)—The report before us is horrifying and is an impressive document. We are horrified by what is demonstrated by many witnesses. In Myanmar, forced labour in many forms exists: old people, pregnant women and children are affected. Together with this you have corporal punishment, which can lead to damage to health or death and the killing and raping of women and girls. We are impressed by the style which aims at constant objectivity and which is used for the drafting of the document. It has the stamp on it of the desire to let facts speak for themselves. It is only in one place, in paragraph 543 which the American delegate has just referred to, the authors of the report show that they simply do not wish to record horror, but also wish to give the name to this horror that it deserves.

Silence might be considered as the expression of secret complicity and in order to avoid this impression the German delegation associates itself with those who take this report as a reason for calling on the community of States to do everything in order to ensure that this forced labour practice in Myanmar could have an end put to it. The minimum readiness of the Government of Myanmar to work with the Commission as required by the ILO Constitution and the inappropriate tone of the letter of 23 September 1998 actually do not justify any positive expectations. Nevertheless, we will not assert in advance that the Government of Myanmar does not seriously mean what it puts in the last sentence of their letter. There, they state their readiness to continue work on the reform of two laws which were particularly criticized by the Commission and they give assurances that as regards the recommendations of the Commission in 539 of the report they will be able to act on it. We hope that these statements are in fact genuine and that the recommendations will be implemented within the time-limit provided.

Mr. ? (Government, Japan)—With regard to the Commission's report which summarized the complaint based on article 26 of the ILO Constitution concerning the case of Myanmar. The Government of Japan takes note of the fact that the Government of Myanmar has responded by undertaking the examination of the details contained in the report through a high-level coordination committee, including the review of the Village Act and Towns Act so as to fulfil the Government of Myanmar's obligation as a Member of the ILO. We also take note of their reply which states that they do not foresee any difficulty in implementing the recommendations in paragraph 539 of the report. Bearing the above in mind, the Government of Japan would like to wait for the efforts in the strong hope that Myanmar will be seen as fully complying with its obligations under the Convention.

The Government of Japan would also like to call on the Director-General to provide necessary assistance to the Government of Myanmar to ensure that the Commission's recommendations are strictly implemented.

Mr. ? [H.E. U AYE] (Government, Myanmar)—I would like to begin by also referring to the document that you had earlier introduced at the beginning of the meeting. Here I refer to document GB.273/5 issued by the International Labour Office for the Governing Body and also to the reply given by my Government and that is, as you mentioned, the appendix appended to the reverse side of that document GB.273/5. This was sent by the Director-General of the Ministry of Labour in my country to the Director-General of the ILO on 23 September 1998. In the earlier interventions I had noted that certain references have been made to the response by our Director-General in his letter and in this context I would like to also refer to this letter and to refer other aspects that have not been adequately mentioned.

Well, I begin with our acknowledgement by the Director-General of Labour to the receipt of the report of the Commission of Inquiry and, together with the letter dated 27 July 1998, by the Director-General here addressed to our Minister for Labour. We also mention that the Myanmar Government formed a High-Level Coordination Committee and this Committee comprised senior officials from several government ministries to deal with matters raised by the Commission of Inquiry.

This Committee examined the details that were contained in the report of the Commission of Inquiry. To go further, the Director-General of the Myanmar Labour Ministry mentioned that the Myanmar authorities have reviewed the two Acts in question, the Village Act and the Towns Act, several times and this is done on our own initiative and this is done so as to bring in line with present-day realities in the country, as well as to fulfil our obligations, as we are a party to Convention No. 29, and also as we are a Member of the International Labour Organization. Hence the Director-General concluded by saying that the authorities would do their utmost to complete the process within the time frame referred to in the report, and I emphasize the time frame referred to in the report. He also adds, and I quote again, “we do not see any difficulty in implementing the recommendations contained in paragraph 539 of the report”.

Listening to earlier interventions made with regard to our letter, it has been mentioned that the issue has not ended with this letter, and I concur with that. It is not ended with this letter because we have a response coming and the response will be done in time. So there should be no doubts expressed in this regard.

To go further, we note that in another intervention the word “deadline” had been used. Well, in my reading of the recommendation of the Commission of Inquiry that I have before me, the “deadline”, it should be done and completed at the very latest by 1 May 1999, quote, unquote (?), 1 May 1999, and not March of next year. Of course we shall try our best to better this deadline, but nevertheless the deadline, as it appears in the recommendation, is 1 May 1999.

Finally, I would like to bring once again to the attention of distinguished delegates that the name of my country is the Union of Myanmar. This is a name that has been recognized by all the countries present in this very room. This is a name recognized by the international community, it is the name acknowledged by the United Nations and this very Organization, including this very Organization, the International Labour Organization. I will not accept, in fact I reject, the reference to my country, the name of my country, Myanmar, by any other name other than the name of Myanmar.

Mr. BRETT—It is because several references have been made to the end of the road, that was the English translation of Mr. Thuesing's remarks, to the exhaustion of the procedures here. I concur with the Burmese Government representative in that this is not the end of the road. But I have to say what he suggests in a very eloquent statement is that we should not (?) actually trust his Government to fulfil their obligations. Trust is earned, it is not earned at the point of a gun, it is not earned by forcing your own people into inhuman situations. I have to say that it is not the end of the road for us, and we will call upon this body and others to take this matter forward if we do not see the full compliance. I would say there is no place in the ILO for a government who behaves in the manner in which this Government has behaved. And I say to my colleague from the Government, I will call his Government Myanmar when it is civilized, and I would at some stage perhaps take pleasure in referring to the democratic Government of Myanmar.

The CHAIRPERSON—If there are no further requests for the floor, I should like to conclude this item by saying that the Governing Body takes note of the report of the Commission and also the reply by the Government of Myanmar and also the Governing Body takes note of all the remarks made by various members …? Ambassador of Myanmar, and particularly I think including this point requesting the Director-General to report to the next Governing Body meeting in March. I think that is not the final report because, as the Ambassador from Myanmar pointed out, the Commission of Inquiry should be completed at the very latest by 1 May, so it is a kind of progress report that we expect from the …? So with that note I should like to conclude the discussion of this agenda item.

(Paragraph 5 is adopted.)