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Governing Body Geneva, November 2000

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Governing Body Geneva, November 2000 INTERNATIONAL LABOUR OFFICE GB.279/6/1 279th Session Governing Body Geneva, November 2000 SIXTH ITEM ON THE AGENDA Effect given by the Government of Myanmar to the recommendations of the Commission of Inquiry established to examine the observance of the Forced Labour Convention, 1930 (No. 29) Report of the ILO technical cooperation mission to Myanmar (Friday, 20 October- Thursday, 26 October 2000) 1. Origin of the mission 1. In talks with the Permanent Representative of Myanmar, Ambassador U Mya Than, shortly after the conclusion of the 88th Session of the International Labour Conference, the Director-General emphasized the need for urgent action on the part of the Myanmar authorities to give effect as quickly as possible to the resolution adopted by the Conference at its 88th Session. He recalled that the resolution in question had authorized the Office to respond positively to all requests by Myanmar for assistance in attaining that goal. On 14 July, the Director-General followed up this conversation with a letter addressed to the Minister of Labour of Myanmar (Annex 1). 2. In an interim reply dated 7 August (Annex 2), the Minister of Labour, while expressing regret that the Conference had not chosen the path of cooperation to resolve the issue, stated that consultations were in progress in Yangon with a view to the adoption of a considered position. 3. On 8 September, the Director-General met the Minister of Foreign Affairs of Myanmar, Mr. Win Aung, at the United Nations Millennium Summit. During the meeting, the Director-General again emphasized the increasing urgency of action on the part of the Myanmar authorities to give effect to the Conference resolution, given that the next session of the Governing Body was only two months away, and recalled that such action was needed in the three main areas indicated in the resolution, namely legislative, executive and administrative measures. In the absence of any concrete action in those areas, the measures adopted by the Conference would take effect. The Minister assured the Director- GB279-6-1-2000-10-0028-2-EN.Doc\v.2 1 GB.279/6/1 General of his cooperation and said that he would communicate to the highest authorities the clear message that had been given. 4. In a letter dated 15 September (Annex 3), the Minister of Labour informed the Director- General that Myanmar would be happy to welcome a technical cooperation mission at the beginning of October. In his reply of 21 September (Annex 4), the Director-General specified the conditions in which the mission could take place. Those conditions related, on the one hand, to the purpose of the mission (helping the authorities to establish the framework of legislative, executive and administrative measures requested by the Conference) and, on the other hand, to the legal status and the freedom of action and contacts of the mission, which had been recognized and respected during the previous mission in May 2000. A letter confirming those conditions in general terms was transmitted to Geneva on 6 October (Annex 5). Unlike the original intentions indicated in the letter of 15 September (which referred to the beginning of October), the letter proposed that the visit should take place only from 20 October onwards. Despite the efforts by the Director-General to bring that date forward (see his letter of 9 October, reproduced in Annex 6), it was confirmed as 20 October and the mission left Geneva on Thursday, 19 October, arriving in Yangon on Friday, 20 October. The mission consisted of: n Mr. Francis Maupain, Special Adviser to the Director-General; n Mr. Max Kern, Chief, Freedom of Workers Section; n Mr. Muneto Ozaki, Director of Research and Policy Development, InFocus Programme on Strengthening Social Dialogue; n Mr. Rueben Winston Dudley, Deputy Director, ILO Regional Office for Asia and the Pacific; n Mr. Richard Horsey, Adviser, ILO. 2. The technical discussions 5. On its arrival, the mission was presented with a proposed programme in which the first two days (Saturday and Sunday) would have been taken up with a visit to Kanbauk, the headquarters of a natural gas extraction project. The mission declined this part of the programme, on the grounds that its mandate related solely to the establishment of the framework of measures referred to by the Conference in its resolution, and that it would have no time left over from the few days that it had planned to spend in Yangon to assist the Government in establishing that framework. The mission was thus able to hold its first working session on Saturday morning. The detailed programme of discussions and the list of the officials met by the mission are reproduced in Annex 7. (a) The parameters of the discussion 6. During its first meeting, the mission was anxious to recall the context in which the discussions should take place and in particular the need for the authorities to be able to report on the concrete actions undertaken in the legislative, executive and administrative areas, as the Director-General had reminded the Minister of Foreign Affairs, Mr. Win Aung. 7. With regard to its objective and the limits of its mandate, the mission recalled that its job was to offer technical assistance to the authorities in establishing the required framework by providing any clarification that might be needed as to the meaning of the 2 GB279-6-1-2000-10-0028-2-EN.Doc\v.2 GB.279/6/1 recommendations of the Commission of Inquiry to which the Conference resolution refers. It was no part of the mission’s mandate to negotiate any compromise, but simply to report objectively to the Governing Body on the progress and outcome of the discussions. It is for the Governing Body in November to assess the degree to which the requirements have been fulfilled. (b) Analysis of the results 8. A fairly detailed record of the discussions is reproduced in the appendix, in the chronological order of the meetings. 9. However, a more synthetic approach to the examination of the results obtained in relation to the stated objectives would appear to be necessary to enable the Governing Body to determine whether and to what extent the terms of the resolution adopted by the Conference at its 88th Session (Annex 8), which itself refers to the recommendations of the Commission of Inquiry (Annex 9) and to the conclusions of the first technical mission to Myanmar between 23 and 27 May 2000 (Annex 10) have been satisfied. This analysis will be based on two main aspects: on the one hand, the legislative measures, and on the other hand, the executive and administrative measures required to eliminate forced labour in Myanmar in law and in practice. (i) Results in the area of legislation 10. The objective, as summarized in point (i) of the conclusions in the report of the ILO technical cooperation mission in May and stated again in the Conference resolution, consists in “rendering all practices constituting forced labour in the sense of Convention No. 29 illegal under national law, and ensuring that all legislative provisions in force that permit the imposition of forced labour are repealed or appropriately amended”. 11. That objective implies “in particular” that the Village Act and the Towns Act be brought into line with the Forced Labour Convention, 1930 (No. 29). Two obstacles to the attainment of that goal have become apparent, one in terms of form and the other in terms of substance. 12. With regard to the form, the Myanmar authorities, referring in particular to the fact that they were not an elected government, did not consider that they could directly amend the Acts in question. For that reason, with Order No. 1/99, they adopted the solution of a text that had force of law in the country’s legal system and which directed all the authorities concerned not to exercise certain powers granted under the Acts in question to requisition labour. The Committee of Experts on the Application of Conventions and Recommendations noted that this could lead to the risk of a return to the previous state of affairs. 1 13. The mission endeavoured more directly to obtain the amendment or withdrawal of the relevant provisions of the Towns Act and the Village Act. While retaining the form of an Order, which appeared to be the only type of instrument which the authorities could imagine, the first proposal presented by the mission (Annex 13) envisaged the simple deletion of the offending provisions, or amendments where appropriate. This proposal was not retained in the third draft presented by the representatives of the Myanmar authorities 1 ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), International Labour Conference, 88th Session, 2000, pages 107-112. GB279-6-1-2000-10-0028-2-EN.Doc 3 GB.279/6/1 (Annex 14). The Government representatives considered that the report of the Commission of Inquiry did not require the amendment of the offending provisions, but simply that those provisions be “brought into line” with the Convention. The second proposal presented by the mission (Annex 16) – which was also not accepted – was based on another approach: it proposed that a statement of the general principle according to which any imposition of forced labour is illegal and constitutes an offence under Myanmar law, which the authorities had agreed to include in the preamble of the Order, should be followed by a clause to the effect that any inconsistent provision in existing legislation was repealed or amended to the extent necessary; this would have covered the offending provisions of the two Acts in question.
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