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GB.276/6
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SIXTH ITEM ON THE AGENDA
Measures, including action under article 33 of the Constitution of the International Labour Organization, to secure compliance by the Government of Myanmar with the recommendations of the Commission of Inquiry established to examine the observance of the Forced Labour Convention, 1930 (No. 29)
I. Information available on measures taken by the Government of Myanmar following the recommendations of the Commission of Inquiry, and action taken in this regard within the ILO since March 1999
1. At its 274th Session (March 1999) the Governing Body decided:
(a) to request the Director-General to inform the members of the Governing Body, by means of a written report, on or before 21 May 1999, regarding measures which the Government of Myanmar has taken to comply with the recommendations of the Commission of Inquiry, together with details of any technical assistance requested or provided;
(b) to request the Director-General, in preparing the abovementioned report, to take into account any comments by the Government of Myanmar, as well as information from workers' and employers' organizations and from other reliable sources;
(c) and immediately thereafter:
(i) to request the Director-General to disseminate the findings and conclusions of the Commission of Inquiry throughout the UN system and include in the abovementioned report any responses received; and
(ii) to place on the agenda of the 276th Session of the Governing Body an item entitled: "Measures, including recommendations under article 33 of the ILO Constitution, to secure compliance by the Government of Myanmar with the recommendations of the Commission of Inquiry".(1)
2. The 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 were described and analysed in the report of the Director-General to the members of the Governing Body dated 21 May 1999, which is reproduced as Appendix I. In response to the Director-General's report, the Government of Myanmar presented a Memorandum which is reproduced in Appendix II.
3. A discussion on the application of Convention No. 29 by Myanmar took place in the Committee on the Application of Standards of the International Labour Conference at its 87th Session in June 1999. The record of the discussion appears as Appendix III. At the conclusion of this discussion, the Conference Committee on the Application of Standards "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 special paragraph of the Committee's report reads as follows:
As regards the application by Myanmar of the Forced Labour Convention, 1930 (No. 29), 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 finding 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.(2)
4. At the same 87th Session, the International Labour Conference adopted a resolution on the widespread use of forced labour in Myanmar (Burma), which is reproduced in Appendix IV.(3)
II. Measures that may be considered by the Governing Body
A. Effect to be given to the resolution on the
widespread use of forced labour in Myanmar,
adopted by the International Labour Conference
at its 87th Session (June 1999)
5. The text of the International Labour Conference resolution on the widespread use of forced labour in Myanmar will be communicated to governments of member States, and through them to national employers' and workers' associations and relevant international organizations, and in particular to intergovernmental organizations, non-governmental organizations with advisory status, and other concerned non-governmental organizations. Below are the proposals drawn up by the Director-General for giving effect to paragraphs 3(b) and 3(c) of the resolution, which call for action by the Governing Body.
Measures concerning technical cooperation
6. Paragraph 3(b) of the resolution concerns technical cooperation or assistance which the Government of Myanmar could receive from the ILO. It states that the Government of Myanmar should cease to benefit from any technical cooperation or assistance from the ILO until such time as it has implemented the recommendations of the Commission of Inquiry established to examine its observance of the Forced Labour Convention, 1930 (No. 29), as contained in paragraphs 539 and 540 of its report Forced labour in Myanmar (Burma). The only exception is direct assistance to implement immediately the said recommendations.
7. At the time of adoption of the resolution (June 1999), the ILO was not engaged in any technical cooperation in Myanmar or with the Government of Myanmar. Between 1991 and 1995, the ILO carried out four technical cooperation projects funded by the United Nations Development Programme (health and safety, social security, manpower planning and training needs). In addition, three regional programmes involved Myanmar until 1996. The scholarships programme also ended in 1996. The total estimated cost of this cooperation from 1991 to 1996 was US$1,511,965.
8. In his letter to the Government of Myanmar of 25 November 1998, the Director-General reiterated the ILO's willingness to provide all necessary assistance to allow the Government to give effect to the recommendations in paragraphs 539 and 540 of the report by the Commission of Inquiry. So far no request for technical assistance for this purpose has been made by the Government of Myanmar.
Invitations to meetings, symposia and seminars organized by the ILO
9. Paragraph 3(c) refers to invitations to attend meetings, symposia and seminars organized by the ILO, which should no longer be extended to the Government of Myanmar except in the case of meetings "that have the sole purpose of securing immediate and full compliance with the said recommendations". These include sessions of the Governing Body devoted to the examination of questions relating to the implementation by Myanmar of the Commission of Inquiry's recommendations. The paragraph refers to meetings, symposia and seminars at which Members may be represented by invitation. It does not refer to participation in the International Labour Conference, which ensues from membership.
10. In light of the foregoing, and so long as the Governing Body -- or its officers acting on its behalf -- has not noted the implementation of the Commission of Inquiry's recommendations, the Governing Body may wish to invite the Director-General:
(a) to ensure that no technical cooperation or assistance to the Government of Myanmar, except for the purpose of direct assistance to implement immediately the recommendations of the Commission of Inquiry, be considered or undertaken by the Office;
(b) take the necessary steps to ensure that no proposal to invite or invitation to attend meetings, symposia or seminars organized by the ILO be extended to the Government of Myanmar, except for meetings that have the sole purpose of securing immediate and full compliance with the Commission of Inquiry's recommendations.
B. Measures under article 33 of the Constitution
11. At its 274th Session (March 1999), when it placed on the agenda of the current session an item concerning the measures to be taken to secure implementation by the Government of Myanmar of the Commission of Inquiry's recommendations, the Governing Body made explicit reference to measures that it might recommend to the International Labour Conference under article 33 of the ILO Constitution.
12. Article 33 of the Constitution states that "in the event of any Member failing to carry out within the time specified the recommendations, if any, contained in the report of the Commission of Inquiry ... the Governing Body may recommend to the Conference such action as it may deem wise and expedient to secure compliance therewith". This article is the result of an amendment adopted in 1946 with the purpose of removing reference solely to the economic sanctions that could be imposed on a Member in the event of its failing to carry out the recommendations of a Commission of Inquiry. The Conference Delegation on Constitutional Questions emphasized that such a general clause would leave the Governing Body full discretion to adapt its action to the circumstances of the particular case.(4)
13. The Governing Body does not have any precedents for the application of article 33 of the Constitution, and the following considerations are intended simply to facilitate the Governing Body's decision.
14. Application of article 33 of the Constitution implies, on the one hand, that the item be placed on the agenda of the International Labour Conference and, on the other, that the Governing Body to have at its disposal information allowing it to adopt those recommendations of the Conference which it considers appropriate to secure compliance with the recommendations on the part of the Member in question. This information concerns both the nature of the measures that the Governing Body might recommend to the Conference for adoption by the latter and the Member's failure to comply with the Commission of Inquiry's recommendations.
Placing the item on the agenda of the 88th Session of the
International Labour Conference
15. In view of the seriousness of the consequences which could result from applying article 33 and of the reasons leading to its application, it would seem juridically necessary to place a specific item on the agenda of the Conference. There is still relevance in the statement made in 1919 by the Commission on International Labour Legislation, which emphasized that the objection and complaint procedures had: "been carefully devised in order to avoid the imposition of penalties, except in the last resort, when a State has flagrantly and persistently refused to carry out its obligations under a Convention. It can hardly be doubted that it will seldom, if ever, be necessary to bring these powers into operation".(5)
16. Consequently, the Governing Body should consider, at the current session, the placing on the agenda of the 88th Session of the Conference (June 2000) of an item entitled: "Action recommended by the Governing Body under article 33 of the Constitution -- Implementation of the recommendations contained in the report of the Commission of Inquiry Forced Labour in Myanmar (Burma)". It should be made clear that the decision at the current session of the Governing Body to add this item to the agenda of the 88th Session of the Conference in no way prejudges the content of the recommendations to be presented by the Governing Body to the Conference. Given its schedule of meetings, the Governing Body will be able to take a decision in the content of its recommendations (if any) at its 277th Session (March 2000).
17. The Governing Body may wish to consider placing on the agenda of the 88th Session of the Conference (June 2000) an item entitled: "Action recommended by the Governing Body under article 33 of the Constitution -- Implementation of the recommendations contained in the report of the Commission of Inquiry Forced Labour in Myanmar (Burma)".
Content of the recommendations under article 33 of the Constitution
18. The Conference made explicit reference in its 1999 resolution to the agenda of the current session of the Governing Body, which mentions article 33 of the Constitution, at the same time deciding that certain measures needed to be taken urgently. These are described in paragraphs 6 to 9 above. It is for the Governing Body to consider what other measures, if any, should be recommended to the Conference under article 33.
19. The provisions of article 33 do not stipulate the nature of the measures that the Governing Body may recommend for adoption by the Conference where a Member flagrantly and persistently fails to carry out its obligations. As noted above, the 1946 constitutional amendment was intended to broaden the range of measures that might be recommended, which had previously been limited to economic sanctions. While the range of measures is extremely broad, the Governing Body nevertheless has good reason for basing its decision on two criteria. The first ensues from the recommendations of the Commission of Inquiry themselves: that the measure to be taken must correspond to the objectives of the Commission's recommendations. The second criterion ensues from article 33 itself and concerns the fact that the measures must be deemed by the Governing Body to be appropriate for securing compliance with the recommendations of the Commission of Inquiry.
20. Before considering the measures that might be recommended to the Conference, it is necessary to clarify a point raised previously by some members of the Governing Body: namely, whether a Member may be expelled from the ILO or have its rights suspended as a result of the flagrant and persistent failure to carry out its obligations. Such a step may be taken only on the basis of a specific provision. Article 13.4 of the Constitution provides for the suspension of a Member's voting rights, but only where it is in arrears in the payment of its financial contribution to the Organization by two years or more. Moreover, the two constitutional amendments adopted by the Conference at its 48th Session (1964) concerning the suspension or expulsion of a Member did not enter into force because the number of ratifications was too low. Thus, the Governing Body cannot propose a decision concerning the suspension or expulsion of a Member.
21. A first category of measures would involve the international organizations: the Director-General could be invited to inform the international organizations of the Member's failure to comply and to ask them to reconsider their cooperation with the Member concerned in the light of the conclusions of the Commission of Inquiry and, if appropriate, to cease any activity which could have the effect of abetting the practice of forced or compulsory labour. A periodic report on the outcome of these measures could be considered by the Governing Body or the Conference.
22. A second category of measures would involve the Members of the ILO, who could be asked to reconsider their relations with the Member concerned in the light of the conclusions of the Commission of Inquiry and to take appropriate individual or collective measures to ensure that these relations could not be exploited by the Member concerned to perpetuate or develop the system of forced or compulsory labour referred to in the conclusions of the Commission of Inquiry.
23. If the Governing Body so decides, the Office can submit to the 277th Session of the Governing Body in March 2000 a paper detailing the various options, taking account of the views put forward during the preliminary examination of the question, in order to enable it at that session to adopt recommendations under article 33 of the Constitution.
Information on compliance with the recommendations
of the Commission of Inquiry
24. From the available information referred to in the first part of this paper, it is apparent that Myanmar has not complied with the recommendations of the Commission of Inquiry within the time specified. However, it is important that the Governing Body has access to updated information in order to be able to reach an informed decision under article 33 of the Constitution.
25. At its 277th Session the Governing Body will have at its disposal comments by the Committee of Experts on the Application of Conventions and Recommendations, which will be holding its 70th Session from 25 November to 10 December 1999. The Governing Body could also ask the Director-General to prepare an update to his report of 21 May 1999 on the measures taken by the Government of Myanmar following the recommendations of the Commission of Inquiry.
26. The Governing Body may wish to invite the Director-General to inform the members of the Governing Body, by means of an update to his written report dated 21 May 1999, to be communicated to them by 28 February 2000 at the latest, of the measures taken by the Government of Myanmar to give effect to the recommendations of the Commission of Inquiry, taking into account in its preparation all the comments made by the Government of Myanmar, the information provided by the employers' and workers' organizations, and all other reliable sources.
Geneva, 7 October 1999.
Points for decision:
Paragraph 10;
Paragraph 17;
Paragraph 23;
Paragraph 26.
1. GB.274/5/D.1 and discussion. See [Draft] Minutes of the Governing Body, 274th Session (March 1999), eighth sitting, pp. VIII/1-4.
2. International Labour Conference, 87th Session, Geneva, 1999, "Report of the Committee on the Application of Standards", Part One, General Report, Provisional Record No. 23, para. 195.
3. For the record of the discussion preceding the adoption of the resolution see International Labour Conference, 87th Session, Geneva, 1999, Provisional Record No. 27, pp. 27/5 to 27/13.
4. International Labour Conference, 29th Session (1946), Montreal, Report II(1): Constitutional questions. Part 1: Report of the Delegation for Constitutional Questions, para. 64.
5. "Report presented by the Commission on International Labour Legislation", Official Bulletin, Vol. 1, p. 266.