June 2003
The Forced
Labor Situation in Burma: Brief History and Current Developments
Current
State of Play:
Recent agreements between the ILO and the Government of
Burma have allowed the appointment of an ILO Liaison Officer to Burma and have
agreed on the implementation of a facilitator to assist possible victims of
forced labor. However, in May 2003, the
International Confederation of Free Trade Unions (ICFTU) logged a formal
complaint with the ILO against the Burmese Government, citing violations of ILO
Convention 87 on Freedom of Association and Protection of the Right to
Organize.
Several bills relating to the situation in Burma have been
introduced in the U.S. Congress and subsequently referred to committee for
debate. In February 2003 Congressman
Pitts introduced a bill in the House calling for the deployment of
international human rights monitors and peacemakers to Burma. In June 2003 Congressman Lantos and Senator
McConnell introduced identical bills in the House and Senate that call for prohibition
of the import of any article that is produced, manufactured, or grown in Burma
until human rights abuses are curbed and democratic government is in
place. The American Apparel and
Footwear Association (AAFA) partially supported the import ban in May 2003 by
calling for a complete ban on U.S. imports of textiles, apparel and footwear
from Burma until the country demonstrates respect for and enforcement of human
and labor rights. Pressure to enact
legislation has increased due to the recent crackdown on Nobel Peace Prize
winner Aung San Suu Kyi and her National League for Democracy (NLD). On May 31, 2003, a pro-government militia
attacked an NLD motorcade and Suu Kyi was taken into military custody. She has not been seen since, and government
forces have closed down dozens of NLD offices around the country.
The Ninth U.S. Circuit Court of Appeals has agreed to rehear
arguments in the case of whether Unocal Corp. can be sued by a group of
villagers from Myanmar. Unocal has been
accused of collaborating with the Burmese military in orchestrating several
human rights abuses during the construction of a natural gas pipeline. The case has significant repercussions for
the Alien Tort Statute (ATS) which can be interpreted to allow civil suits
against U.S. companies over allegations of human-rights abuses abroad. The U.S. Department of Justice filed an
amicus brief with the court arguing for a reinterpretation of the ATS that
would overturn previous rulings on the statute and implement a much more limited
interpretation.
Background:
After Burma gained independence from Britain in 1948, a
democratic regime led the state until a military coup seized control in
1958. Successive military juntas have
ruled the country since that time, with a brief restoration of democracy in
1960 only lasting two years. In the
closing years of the 1980s, pro-democracy rallies in response to the oppressive
military junta in power brought international attention to the brutality of the
Burmese government. In 1988, students,
workers, and monks took to the streets in democratic uprisings, protesting the
oppressive political and depressive economic climate for which the government
was responsible. As the army began to
suppress these demonstrations, thousands were slaughtered and more were
terrorized by the military.
Following this disaster, a new military government stepped
into power. Calling itself the State
Law and Order Restoration Council (SLORC), the new government conducted a
“free” election in May 1990 with the intention of turning power over to a
civilian government. In this election,
the NLD overwhelmingly defeated opposition.
However, the SLORC refused to acknowledge the election and remained in
power. In 1997, the SLORC changed its
name to the State Peace and Development Council (SPDC), but was substantively
the same organization. The NLD has
remained a powerful force in the fight for democracy, but is hindered by the
Government’s continued oppression of the party. Members are often arrested and imprisoned; their Secretary
General has been under house arrest for the majority of the 13 years since the
election in May of 1990. However, under
the leadership of Aung San Suu Kyi, the 1991 Noble Peace Prize recipient, the NLD
engaged in discussions with the SPDC about a peace process and a general move
toward democracy. Negotiations have
since broken down. In May 2003, the
SPDC cracked-down on the NLD and re-arrested Aung San Suu Kyi after a violent
confrontation with NLD supporters orchestrated by a pro-government militia.
U.S.
Actions and Reactions:
·
Following the August 1988 massacre of
demonstrators, the U.S. Senate unanimously passed a resolution that condemned the Burmese government and called for a
restoration of democracy. Following the resolution in September, the United
States suspended all arms sales and
foreign assistance, except humanitarian aid, to Burma.
·
The Bush administration decertified Burma from the list of states
cooperating in the efforts against narcotics in 1989, denying access to the
anti-narcotics funds, Export-Import Bank and OPIC guarantees, and blocking aid
and loans for Burma from multilateral development banks. In April 1989, President Bush revoked Burma’s benefits under the
Generalized System of Preferences (GSP).
·
In Spring 1990, the Senate voted 92 to
0 for a partial ban on Burmese imports, the bill that eventually became part of
the Customs and Trade Act of 1990. By
August, Congress passed the Customs and
Trade Act of 1990, requiring the President to impose economic sanctions against Burma if specific conditions were
not met, including progress on human rights and suppression of the outflow of
narcotics.
·
On July 22, 1991, President Bush
invoked Section 138 of the Customs and Trade Act of 1990, refusing to renew the bilateral textile agreement that expired in
December of the previous year.
·
In 1994, under the provisions of the Foreign Assistance Act of 1961,
Congress listed Burma as one of the international
“outlaw” states, essentially prohibiting U.S. funds to international organizations
to be used for programs in Burma.
·
President Clinton signed the 1997
Foreign Operations Appropriations bill in September 1996, barring U.S. assistance to Burma except for relief aid and
anti-narcotic purposes and calling for a moratorium on new American private investment to prevent
nationalization or seizure of American property.
·
In October 1996, Clinton barred Burma government leaders from
entering the United States and Burma responding in turn with like
measures. In this same year, U.S. representation in Burma was downgraded
from Ambassador to Chargé d’Affaires.
·
On May 20, 1997, the President signed
an executive order executing the provisions in the Foreign Operations
Appropriations bill, prohibiting new
investment and barring modification or expansion of existing commitments.
·
In 2001, a bill was introduced in the
Senate by Senator Harkin calling for the prohibition
of the importation of any article that is produced, manufactured, or grown in
Burma. This bill cites the year
2000 ILO Resolution that recommended governments to reassess their relationship
with Burma. This ban would remain in
place until the practice of forced labor in Burma ceases and a democratically
elected government steps into place. An
identical bill was introduced into the House by Congressman Lantos.
·
On May 2, 2002, President Bush welcomed
the release from house arrest of Aung San Suu Kyi with the hope of national
reconciliation and a return to democracy.
·
On February 13, 2003 Congressman Pitts
introduced a bill in the House calling
for international human rights monitors and peacemakers to be deployed to Burma
to deal with the problems of ethnic cleansing, refugees, forced labor and
illicit drugs production. The bill was
referred to the Committee on International Relations.
·
On May 15, 2003, the Department of
Justice filed an amicus brief in the case of Doe v. Unocal Corp. Under the Alien Tort Statute (ATS), Unocal
is being sued by Burmese villagers for human-rights abuses they suffered under
the Burmese military during the construction of a natural-gas pipeline in which
Unocal is a partner. The Department of Justice has urged the Ninth
Circuit Court of Appeals to reinterpret the Alien Tort Statute so that U.S.
courts only use the “law of nations” (which includes international human-rights
law) as a basis for a right to action when it is specifically legislated under
U.S. law. The Ninth Circuit Court of
Appeals will rehear arguments in the case on June 17, 2003.
·
On May 31, 2003, the Burmese Government
re-arrested Aung San Suu Kyi and closed numerous NLD offices around Burma after
a violent confrontation in northern Burma.
President Bush issued an official
statement calling on the Burmese Government to release Suu Kyi and re-open
the NLD offices.
·
On June 4, 2003, Congressman Lantos and
Senator McConnell introduced identical bills in the House and Senate calling
for prohibition of the import of any article that is produced, manufactured, or
grown in Burma until human rights abuses are curbed and democratic government
is in place. These bills, both entitled
“Burmese Freedom and Democracy Act of
2003”, are new versions of bills introduced by Congressman Lantos and
Senator Harkin in 2001. Both bills were
referred to committee for debate.
International
Labor Organization Involvement:
Ø
ILO receives allegations of
forced labor in Burma - 1991
The involvement of the ILO on the Burma forced labor issue
began in 1991 when the Committee of Experts on the Application of Conventions
and Recommendations heard the comments from the ICFTU. The complaint regarded the alleged practice
of compulsory portering by the Burma military, in direct violation of ILO
Convention 29 on Forced or Compulsory Labor, ratified by Burma in 1955.
Ø
Burma responds to the allegations
- 1992
In 1992 at the International Labor Conference (ILC), held
every June, the Burmese Government responded to those charges in the Committee
on the Application of Standards. They
confirmed the fact that porters were used by the military, but denied that they
were mistreated at all. They referred
to two provisions, the Village Act of 1908 and the Town Act of 1907. The Government went further to state their
guidelines for recruitment as porters: they must be unemployed, be physically
fit, and agree to a fixed and reasonable amount of wages beforehand. Given these guidelines, the Government
alleged that the stated labor was not forced, but voluntary. Despite these statements, the Committee concluded
that the Government needed to report in full to the ILO.
Ø
Tripartite
Committee examines case - 1994
The following January 1993, the ICFTU made a representation
alleging non-observance by Burma of Convention 29 under Article 24 of the ILO
Constitution. This representation is a
formal reporting of non-compliance observed by an industrial association of
either employers or workers and allows the Governing Body of the ILO to call
forth the offending Government to respond.
At the 255th Session of the Governing Body in March 1993, the
Governing Body accepted the ICFTU representation and formed a committee to
examine the allegations. The committee
had the benefit of further information emanating from a “Report by a Special
Rapporteur on the situation of Human Rights in Burma” submitted to the United
Nations Commission on Human Rights in February of that year. This report not only concerned the
compulsory portering in Burma, but of further compulsory labor in the
construction of railroads.
The tripartite committee concluded that the ICFTU testimony
combined with the Report of the Special Rapporteur refuted the claims of the
Government that there was no forced labor in the country. As such, they set forth a series of
recommendations for the Governing Body.
First, they urged the Governing Body to approve the report, specifically
the argument that the Village Act and Town Act were in direct violation of
Convention 29. Second, they urged the
Government of Burma to take the necessary steps to revise these legislative
texts in order that they fall in line with the ratified Convention. This done, the Government was to ensure that
the formal repeal of powers to impose compulsory labor be followed up in
practice as well as punishing those found in violation of this revised law. The Committee also requested the Government
to report on the measures being taken to comply with the previous requests.
Ø
ILC recommends necessary steps to
Burma - 1995
At its November 1994 meeting, the Governing Body urged the
Government to take those steps as recommended by the Committee set up to review
the representation. The Committee of
Experts further recommended that the Government comment on the testimony of the
UN Special Rapporteur and to comply with the recommendations of the Governing
Body. At the ILC in June 1995, the
Burmese Government continued to deny any compulsory labor occurred and
proceeded to blur the line between voluntary labor and forced labor
further. In the tripartite Committee on
the Application of Standards, these comments provoked all three parties to call
on the Government to:
a) immediately
repeal the offending legal provisions, the Village and Town Acts.
b) directly
terminate forced labor practices on the ground, punishing those who violated
this order.
c) furnish
a detailed report on the measures, both legislative and practical, that are engaged
in furthering this goal.
Ø
Commission of Inquiry established
- 1996
At the following Conference, 25 worker delegates signed a
letter of complaint against Burma. This
started a complaint procedure as outlined in Article 26 of the ILO
Constitution, establishing a special Commission of Inquiry to investigate
non-observance of conventions or standards.
This procedure is only invoked in cases of persistent violations and
disregard for the recommendations of appropriate supervisory bodies. In March 1997, the Commission of Inquiry was
established, publishing their report a year later. The Commission was barred from Burma by the government, but was
able to interview over 250 residents and examined 6000 pages of documents. The Government of Burma abstained from the
hearings. The Commission concluded that
the Government of Burma systematically used forced labor for many different
military and public works projects. The Commission went further to recommend the
following three actions:
a) offending
legal provisions, the Village and Town Acts, must be amended to be brought in
line with the Convention without further delay, deadline of May 1, 1999.
b) the
actual practice of forced or compulsory labor must cease, especially if imposed
by the government or the military.
c) penalties
for the imposition of forced or compulsory labor must be strictly enforced,
with appropriate investigation, prosecution, and punishment of guilty parties.
Ø
Article 33 Procedures - 1998
At the end of 1998, the ILO Director-General conducted an
investigation into the implementation of the Commission’s recommendations by
the Burmese Government. In his report,
the Director-General found that the Government had limited its efforts to the
review of the pertinent laws, which the Governing Body found to be inadequate
compliance efforts given the situation.
The Governing Body asked the Director-General to report again in May and
looked to devise recommendations under Article 33 of the ILO Constitution to
secure compliance by the Government with the Commission of Inquiry’s
recommendations. Article 33 provides
the Governing Body the authority to secure compliance of a country if they fail
to comply with the Commission of Inquiry’s recommendations or a decision of the
International Court of Justice by any prudent measures necessary.
Ø
Resolution on ILO relations with Burma - 1999
At the June 1999 ILC, the Conference adopted an
unprecedented resolution against Burma for persistent violations of Convention
29 and the failure to comply with recommendations of supervisory bodies. This resolution resolved that the Government
would cease to benefit from any technical assistance from the ILO and that the
Government would not receive invitations to attend meetings, seminars, or any
other functions unless the meeting was held specifically to secure full
compliance.
Ø
Resolution
calling for sanctioning measures against Burma - 2000
In March 2000, the Governing Body decided to request the ILC
to draft provisions under Article 33 designed to bring Burma within compliance. By resolution, the ILC adopted measures,
which were to go into effect after November 30, 2000 if the Government of Burma
failed to fulfil the recommended actions of the Commission of Inquiry. These measures include:
a) placing
Burma on the agenda for future Conferences and also to set aside a Special
Sitting of the ILO Committee on the Application of Standards.
b) recommending
to ILO constituents and stakeholders to review their relations with Burma and
take appropriate measures to ensure that their relations do not abet the system
of labor present in Burma.
c) requesting
the Director-General to inform international organizations working with the ILO
to reconsider any programs they are engaged in with reference to Burma and to
cease directly if that practice contributes to the practice of forced labor in
the county.
d) requesting
the Director-General to request the United Nations’ Economic and Social Council
(ECOSOC) to discuss at their July 2001 high-level sitting the failure of Burma
to implement the recommendations and seek adoption of recommendations directed
by ECOSOC and/or the General Assembly.
e) requesting
the Director-General to report to the Governing Body on the measures directed
to the international organizations and to the United Nations.
In November 2000, the Governing Body adopted these measures
based upon the resolution of the ILC and on a report from an ILO Technical
Mission to Burma which stated that the Government had failed to implement
necessary changes to secure compliance.
Ø
High-Level Team to Burma - 2001
On
November 18, 2000, the Government of Burma released a press statement stating
that they would no longer cooperate with the ILO in the application of
Convention 29, however they would continue efforts to eliminate forced labor as
was their policy. Despite this, in
March 2001 discussions took place between the ILO and the Government of
Burma. These discussions began with the
hopes of forming an agreement between the parties on the modalities of an
objective assessment of Burma’s compliance with Convention 29. The Government submitted a report to the
Governing Body stating that they believed that they were now within compliance,
given a series of Legislative Orders that they felt corrected the forced labor
problem. The Governing Body did not
believe that the actual practice had ceased, hence the need for an objective
assessment by an ILO High-Level Team (HLT).
The HLT arrived in Burma on September 17, 2001, and spent
three weeks meeting with government officials and conducting interviews around
the country. The final report, issued
in November 2001, noted efforts by the Government of Burma to disseminate
information on the new legislation across the country. However, the report remarked on the limited
impact of the new legislation due to: the “self reliance policy” of the
military; the continued impunity of the military from criminal prosecution; and
the lack of funding and organization by the authorities for new public works
projects to be carried out without forced labor. The Governing Body urged the Government to provide more evidence
that the situation was being rectified, and suggested the creation of an
independent labor ombudsman. The
Governing Body also requested permanent ILO representation in Burma as soon as
possible.
Ø
Appointment of ILO Liaison
Officer to Burma - 2002
On March 19, 2002, the ILO and the Government of Burma
agreed to the appointment of an ILO Liaison Officer. The Liaison Officer would work with the authorities to ensure the
prompt elimination of forced labor in the country. Leon de Riedmatten served as the interim Liaison Officer from May
until October, when the Governing Body announced Ms. Hông-Trang Perret-Nguyen
as the permanent ILO Liaison Officer.
Ms. Perret-Nguyen then began developing a formal Plan of Action to
eliminate forced labor. The Plan of
Action was set to include the selection of a site for a road-building project
in a pilot area, alternatives to the use of forced labor, and information and
awareness raising measures.
Ø
Developments in Advance of
International Labor Conference - 2003
On May 14, 2003, the ILO and the Burmese Government
concluded negotiations that would allow the establishment of a facilitator to
assist possible victims of forced labor.
The ILO decided that implementation of the Plan of Action against forced
labor would be a priority at the ILC in June 2003. This development came just after the ICFTU logged a formal
complaint with the ILO against the Government over violations of ILO Convention
87 on Freedom of Association and Protection of the Right to Organize. The ICFTU also released a broader report
criticizing the Government for a wide range of abuses, including forced labor,
child labor and forced relocation.
