Many civilians in Burma have been victims of forced portering. This usually occurred because Myanmar has not very good roads. Amnesty international reported that during 2000 civilians were forced by the military to do portering duties. Accordingly, the civilians were forced to carry heavy loads for long periods. In case were they could not keep up with the group, they were beaten up or tortured by other ways.
Civilians were also forced to construct or maintain military camps. When a new military camp was planned to be built, one person from each family of the villages near the military camp had to be chosen to help in its construction. Usually children were chosen for that needs, as the eldest members were busy working in other places to support their family.
The military does not discriminate amongst individuals and in order to proceed with its “development programs” forces people of all ages of both sexes to work. According to an amnesty international report Villagers of all ages, including women and girls are forced long hours in those projects without food, wage or medical care.
Furthermore, the military forces the recruitment of soldiers. The Human rights watch reported that many children from the age of 11 are recruited in army. In 2002 more than 70.000 children under the age of 18 were serving in Burma national forces. Their duties are to burn villages, guard in construction works other people that are forced to carry out the “development programs” and combat opposition groups.
In Burma, there are many of children that are forced to work. According to Global March statistics, in 1995 there were 1.2 million economically active children in Burma. Children were forced to do hard works for instance to construct and maintain irrigation facilities which are important to cultivation of some export crops. Consequently, many children get injured and even die while working while they are being deprived from their right to education.
The military forces people to work from particular ethnic minorities. These include the Karen, Mon, Shan, Rohingya, Karenni, and Chin people which make up the one third of the Burmese population.
The Rohingya minority are in their majority Muslims. This has been argued is the reason why the Burmese government continues to demand forced labour from them. The burden of forced labour demands from the authorities falls mainly on the Rohingya population, as the Rakhine population living in the same areas appear to often be exempted from it.
The International Labour Organisation has expressed its discomfort about the phenomenon of forced labour in Burma. It has been reported that despite small improvements in Rangoon, the situation in the boarders remains serious and has changed little.
1.3 Why Forced Labour is occurring in Burma?
It is quite clear that many citizens including kids, women and elder are victims of forced labour in Burma. However one will think what is the purpose of those actions? In answering this question we must consider the political and economical situation in Burma.
Economically, forced labour is beneficial generally, not only for Burma but for all governments which apply it. Without having to pay for wages or food, the Burmese government has succeeded to build various construction works. Almost every report of Amnesty international which is relevant to the issue of forced labour, states that civilians are forced to build highways, clear forests and build military bankers. Other people were forced to work as porters for soldiers. The International Labour organisations has also reported that forced labourers work in other infrastructure projects, many of which are related to the Government's efforts to promote tourism in Myanmar.
Politically, forced labour also benefits the junta. Today Burma has recruited one of the greatest Asian armies. This fact has helped the SPDC to remain in the leadership of the Burmese government, although it lost the elections by the National League for Democracy (NLD) in 1989. Furthermore, Burma has used forced labour to fight opposition groups in the boarders of the country. More extreme examples are of the enforcement of people to act as “human minesweepers” in areas full of mines or as “human shields”.
Part 2 – “International Law and Forced labour in Burma”
2.1 The Forced Labour Convention 1930 and Burma
Since 1955 Burma has ratified Forced Labour Convention, 1930 (No. 29) that was complemented by the Abolition of Forced Labour Convention, 1957 (No. 105). Therefore, in respect of article 1.1 Burma has undertaken two obligations: a) “to suppress the use of forced or compulsory labour in all of its forms” and secondly, to do so “within the shortest possible period”. As mentioned in part 1.2 above, there are still some forms of forced labour in Burma. Civilians are forced to construct roads, railways, military camps; they are forced to work as porters carrying heavy loads for long distances; Prisoners are forced to work in inhuman conditions; and others are forced to recruit in the military.
Although the problem of forced labour has been addressed to the Burmese government for more than twenty years, recently published reports by NGO’s and the special rapporteur of the United Nations show that forced labour still exists in Burma. However, the Burmese government has failed to take effective measures to prevent the abuse from accruing.
Article 2.1 defines what forced labour is, as mentioned in Part 1.1. Furthermore, article 2.2 paragraphs a – e term what does not consist of forced labour. Therefore, in order to give an opinion on whether or not Burma is in breach of article 2, each exemption shall be considered separately in respect with the different reported forms of forced labour.
Paragraph (a) states that “any work or service exacted in virtue of compulsory military service laws for work of a purely military character” shall not be regarded as forced or compulsory labour.
Civilians are forced to work in military bases to do several works, like carrying guns and work as porters, although the Burmese government asserts that such services are on voluntary basis. Furthermore, under Burmese legislation of the Towns Act of 1907 and the Villages Act of 1908, which are still in effect, forced labour is legally exercisable. It seems that Burmese people that do military work either under the 1907 and 1908 acts, are not doing so voluntarily and for this reason it falls outside of its meaning. Moreover, article 13 of the International Law commission’s Draft Declaration on the rights and Duties of States 1949, provides that in international law, international law is supreme over national law. Thus, the Burmese government in order to comply with article 1, it shall amend the existing legislation which provides for forced labour or even abolish those acts.
The second exemption of forced labour in Paragraph (b) is “any work or service which forms part of the normal civil obligations of the citizens of a fully self-governing country”. Neither this is the case in Burma. Civil obligations of citizens may include the duty to vote on elections, or the Duty for someone to act when involved in dangerous incident requiring his help. Nevertheless, under no circumstances it can be said that “civil obligations” include either the construction of roads or to work as porters for soldiers.
Furthermore, Paragraph (c) exempts from the definition of forced labour any “work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations”.
Criminal trials in Myanmar are quite unfair and below the reasonable standards of a due process. The International Labour Organisation reported that many criminal convictions in Burma are entered in summary trials or even with no trial at all. Additionally the presumption of innocence is not always observed and the defendant sometimes is deprived his right to a lawyer. Therefore, it is quite doubtful if the Burmese tribunals fall amongst the definition of “courts of law” to safely say that people detained in prisons, really are prisoners and not slaves.
Furthermore, paragraph (c) requires that prisoners are “not placed at the disposal of private individuals. This requirement is as well not met by the existing Burmese policy, which has been forcing prisoners to work for private individuals. Examples of private companies that were using prison labour include the American company “Unocal” and the French oil company “Total”.
Moreover, forced labour in Burma is not justified under paragraph (d) which provides that “any work exercised in cases of emergency” such us war, or calamity, or threatened calamity. Burma is not on war with other nations. Nevertheless, there is an armed conflict in Myanmar, but this is caused by the repressive governance of the Junta. It seems quite clear that Burma is not in a case of emergency nor the prime ministers fears for terrorist attacks place the country is such case.
Finally, the construction of roads and railways or the reconstruction of tourist places are “not minor communal services… in the direct interest of the community” to be exempted from the definition of forced labour, with respect to paragraph (e).
Part 3 – “The UN Procedural Action for Forced Labour in Burma”
3.1 The International Labour Organisation Procedures
In 1919 the International Labour Organisation (ILO) was founded and became the United Nations first specialised agency. It deals with the abolition of forced labour and other abuses of labour rights. Generally, ILO seeks the promotion of social justice and internationally recognized human and labour rights.
Every year in the International Labour conference in Geneva, governments, Employers associations, trade unions and delegates may use four complaints procedures, in order to report a non compliant member state. With respect to the abolition of forced labour, a representation may be made under article 24 of the ILO constitution or a complaint under article 26.
3.1.1 Article 24 procedure
Under article 24 of the ILO constitution, any industrial association of employers or workers may make a representation to the International Labour Office, “if any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party”. If the representation fulfils the criteria the Governing Body sets up a committee to examine the matter, and to make recommendations. After that, the government concerned is contacted and may be asked to give a statement. At the end the government may decide to publish the representation or alternatively, may decide to start a complaint under article 26.
In the case of Burma, the International confederation of Free trade Unions made a representation under article 24 for its failure to comply with the forced labour convention, in 1993. However, the Burmese government failed to reply to the recommendations made by the ILO committee.
3.1.2 Article 26 procedure
In the 83rd session of the International labour conference in June 1996, a complaint under article 26 was filled by 25 workers’ delegates against the government of Burma for not observing the Forced Labour Convention 1930. Article 26 of the ILO constitution gives the right to any of the member states to file a complaint against another member, if it is satisfied that the later is not securing the effective observance of any convention that both members have ratified.
Following the complaint, the next step is for the Governing Body to communicate with the government in question and require it to give a statement with respect to the allegation. If however the Governing Body does not receive a reply from the government in question, may appoint a Commission of Inquiry to consider the complaint and to report.
In the case of forced labour in Burma, the government of Burma made a reply which was not found satisfactory by the Governing Body and therefore a commission of inquiry was set up to make a report and make its recommendations with regard to the abuse. The report was completed and communicated to the Burmese government. Although Burma accepted the recommendation in 1998, without referring the recommendations of the commission of inquiry to the International Court of Justice to either affirm vary or reverse its findings, under article 32 of the ILO constitution, it failed to implement them.
Thus, a resolution was adopted by the international Labour conference in 2000 under article 33 of the ILO constitution which provides in the case where a member state fails to comply with the recommendations of the commission of inquiry. The resolution urged Burma to comply with the recommendations by the end of November of 2000. If Burma failed to comply, then ILO would ask from its members and other organizations to consider their relationships with the Burmese government. In November 2000 the recommendations of the commission were not implemented by the Burmese government and the Director General of the ILO asked from international organisations to stop co-operating with Burma and also stop any activities which support the practice of forced labour.
3.2 Other UN procedures
The Human rights commission has some special procedures in order to examine monitor and report on human rights situations in specific countries. In respect of resolution 1503 of the EcoSoc two independent experts where appointed in Burma in 1990 and 1991 by the sub-commission, to investigate the situation in Burma and report to the Secretary General of the UN. A year later the Commission went on and pursuant to resolution 1235 of the EcoSoc, since 1992 a special rapporteur and has been reporting once a year, in respect of the human rights abuses in Burma. In his reports the special rapporteur has been addressing the problem of forced labour and in his most recent report in 2004 he stated that forced labour still exists in Burma.
The General Assembly can create resolutions in respect of human rights abuses to a particular state, for instance Burma. In the report it can specify the problems and recommend what shall be done in order for the abuses to stop. However, General Assembly resolutions are not obligatory to the member states, without this to mean that they are not important. They can be an effective way of initiating important political, economic, humanitarian, social, and legal changes. Furthermore, they can blur the image of government.
Moreover, a complaint may be brought by an individual using the Optional Protocol to the International Covenant on Civil and Political Rights. The covenant prohibits slavery and sets out a separate and specific prohibition against forced labour in article 8(3)a which provides that “no one shall be required to perform forced or compulsory labour”. There also exemptions to that definition quite similar to those in the Forced Labour Covenant 1930 (No.29). After a complaint has been made the Committee asks from the state to explain and clarify the problem and to indicate if anything has been done to settle it. The findings and decisions of the committee are made public and are reproduced in the Committee’s annual report to the General Assembly.
Although resolutions reports and publications of particular abuses are aiming to the stop the abuse occurring, what in fact achieve is to scrutinise the image of the member state where the abuse occurs to its civilians and to the rest of the world. Nevertheless, when economic sanctions are applied to the state, then it may review its policy and take appropriate measures to stop the abuse which the sanctions are applied for. Most effective seem to be the influence of the International Labour Organisation to International private companies in Myanmar, to discourage them from investing and hence, to stop supporting economically the military regime.
Part 4 – “Alternative Action towards the stop of Forced Labour”
4.1 The United Kingdom
The United Kingdom has been very active towards the situation in Burma. The Burma campaign is an International NGO established in England, promoting human rights and democracy in Burma. Currently, Burma Campaign aims to succeed democracy in Burma through discouraging the investment and trade in Burma, by raising the public awareness of issues relating to Burma and by applying international pressure to the UK government, the European Union, The Association of the South East Asian Nations and the United Nations.
Although it is quite sad that Of all foreign investment in Burma, investment by the United Kingdom’s was listed as the third largest in 93/4 and 94/5, the second largest in 95/6 and the largest in 96/7 and 97/8, it has been reported that a total of 138 high street retailers responded to Burma Campaign by pledging not to continue doing business in Burma, given the current situation.
Still in 2004, it has been reported that the United Kingdom ignores EU asset freeze in Burma. In a debate in the House of Commons between Conservative MP, Richard Spring Foreign Office and Minister Mike O’Brien, the latent admitted that the UK has not frozen any regime assets. During the debate MPs from all three main political parties called on the government to impose tougher sanctions on Burma.
4.2 The European Union
The European Union today has only imposed very limited sanctions on Burma. Burma Campaign reports that the ban on arms sales in Burma has no impact. Further more, the visa ban has no visible impact on the behaviour of the regime. However, there is a small impact on the withdrawal of trade privileges, a welcomed move, although EU has been one of Burma’s biggest investors earning the junta hundreds of millions of dollars. According to the Europa website, in 2002 imports from Burma totalled 438 million Euros.
In 2000, The European Parliament addressed a resolution to the Burmese government, which as well discouraged European citizens from visiting Burma, given that tourism is a great source of money for Burma. The most recent resolution of the EU parliament, was earlier this march, urging the UN and member states to take action against Burma.
Nevertheless, the EU has failed it self to take effective sanctions against Burma. Its Failure by the EU to implement sanctions is undermining US sanctions. Following implementation of financial sanctions by the US, the regime switched from using US dollars to Euros. Swift – the international financial technology co-operative controlled by most of the world’s major banks – is working with the regime to help it use euros so it can get round US sanctions.
4.3 The United States
The United states of America have taken the hardest measures against the Burmese government to stop human rights abuses from occurring. The US has a separate convention for respecting human rights, the American Convention on Human Rights (1969). Article 6(2) provides for against forced labour.
The special rapporteur in 2004 reported that new sanctions have been imposed in July 2003, providing a visa ban to citizens of Burma travelling to the US. Additionally, it provided for the freezing of assets, an import Ban and a ban on the provision of financial services like remittances and trade facilitation by the US citizen.
The special rapporteur reported that the new sanctions immediately disrupted the economy of Myanmar. With regard to the import ban, the clothing industry was hardly struck and the government has been unable to assist affected businesses and their employees. Consequently, it was reported that 100,000 people could possibly lose their jobs. A side effect was that most of those people were women and children who don’t have alternative options to ear a living and some of them would be forced into sex trade and prostitution.
4.4 Action by Individuals and other NGO’s
Amnesty International and the Human Rights Watch have been systematically boldfacing the tragic situation of forced labour in Burma. Individuals from Burma or from outside Burma may contact such NGO’s and complaint about Human rights abuses. The more complaints received, the more the abuse is combated. Additionally, they can make a donation to help the fight against forced labour.
Furthermore, it seems that more countries need to be urged to have an absolute international ban on investment in Burma. Only by this way we may succeed the economic collapse of the Burmese government, even though Burma has great economic benefits from the illegal trade of opium. Nevertheless, effective and quick action must be taken by all investors of Burma.
Conclusion
This work has evaluated the abuse of forced labour in Burma. It has showed that various forms of forced labour exist, like portering, and forced construction of roads. The many complaints to International and National NGO’s shade the great dimensions that forced labour abuse has taken in Burma.
It seems quite that the Burmese government is in breach of article 2.1 of the Forced Labour Convention given that all forms of forced labour are not exempted by article 2.2, and immediate action must be taken by the Burmese government to amend or abolish the Towns Act 1907 and the Villages Act 1908 which provides for forced labour, in order to comply with international law.
The UN has taken some action to prevent the abuse from occurring. Reports and Resolutions by the General Assembly are published every year to sensitise the Burmese government and inform other Nations about the situation. The special rapporteur since his first visit in Myanmar has been addressing to the Commission on Human Rights the continuing occurrence of forced labour in Burma. Moreover the ILO, which is the specialised agency of the UN, has had great concern of the matter respectfully, and in his report recognised the problem and took further action by urging its members states not to continue investing in Burma.
Many companies from the United Kingdom have stopped investing in Burma. The European Union although reports each year and gives resolutions with regard to the situation in Burma, has failed to implement the sanctions and furthermore, some of its sanctions have been proved ineffective. The United States have done the greatest effort by applying hard trading bans in Burma succeeding a good strike to the Burmese economy.
Nevertheless, the action against forced labour must be diverted in a wider spectrum and stronger sanctions must be taken by the United Kingdom and the European Union. This is considered as the most important action by the conductor of this paper. If total economic ban is achieved by foreign investors in Burma, then maybe one day democracy will rule in Burma.
BIBLIOGRAPHY
Amnesty International (1998) “MYANMAR: Time to end forced labour” http://web.amnesty.org/library/Index/ENGASA160221998?open&of=ENG-MMR
Amnesty International (1999) “Stop Forced Labour in Myanmar!”
http://web.amnesty.org/library/print/ENGASA160091999
Amnesty International (1999) “ASEAN Labour Ministers meet where forced labour is commonplace” http://web.amnesty.org/library/print/ENGASA160101999
Amnesty International (2002) “Amnesty International's Concerns to the International Labour Conference” http://web.amnesty.org/library/Index/ENGIOR420012002?open&of=ENG-MMR
Amnesty International (2002) ”Myanmar: Forced labour, extortion, displacement and land confiscation - the rural life”
Amnesty international (2003) “Myanmar: Justice on Trial” Amnesty International” http://web.amnesty.org/library/index/engasa160192003
Amnesty International (2003) “Myanmar: Amnesty International's first visit to Myanmar Official statement”
Amnesty International (2004) ”
http://web.amnesty.org/library/Index/ENGIOR410012004?open&of=ENG-MMR
Anti Slavery (1999) “What is modern slavery?”
Anti Slavery (2003) “Forced labour in the 21st century” http://www.antislavery.org/homepage/resources/forcedlabour.pdf
Brown C. Burma: The Political Economy of Violence. Disasters, Volume 23, Number 3 (September 1999), pp. 234-256, http://ejournals.ebsco.com/direct.asp?ArticleID=E9MVEXRR3DFQEF98P96X
Burma Campaign (2003) “” http://www.burmacampaign.org.uk/reports/comingclean.html
Burma Campaign (2004) “” - http://www.burmacampaign.org.uk/reports/roadmap.htm
Burma Campaign (2004) “UK ignores EU Burma Sanctions”
Burma Campaign (2004) “”
Forced Labour Convention 1930 (No.29)
General Assembly (2003) “Statement by HE U Win Aung, Minister for Foreign Affairs and Chairman of the Delegation of the Union of Myanmar”
Guay b. (2002) Local Government and Global Politics: The Implications of Massachusetts' "Burma Law". Political Science Quarterly, Volume 115, Number 3 pp. 353-376, http://ejournals.ebsco.com/direct.asp?ArticleID=TPKM1B5F8WUVRR28Y83X
Henderson J. (2003) The Politics of Tourism in Myanmar. Current Issues in Tourism, Volume 6, Number 2 pp. 97-118, http://ejournals.ebsco.com/direct.asp?ArticleID=BUQ4K5TGRVMF5ALTYHXP
Human Rights Watch (2001) “Burma still using forced labour”
Human Rights Watch (2001) Burma Violates Own Ban in Use of Forced Labor (2001)
Human Rights Watch (2001) “World Report 2001 on Burma”
Human Rights Watch (2003) “World Report 2003 on Burma”
Human Rights Watch (2004)
International Covenant on Economic, Social and Cultural Rights 1966
International Labour Organization (1998) “Forced labour in Myanmar: Report of the Commission of enquiry appointed under article 26 of the constitution of ILO”
http://www.ibiblio.org/obl/docs/myanmar-OBL.htm
Official Journal of the European Union (2004) Council Regulation (EC) No 798/2004
The Abolition of Forced Labour Convention 1959 (No. 105)
Universal Declaration of Human Rights
http://sunsite.nus.edu.sg/SEAlinks/burma-info.html
http://www.burmacampaign.org.uk/index.php
Crimes against humanity are defined in article 6 of the Charter of the Nuremburg Tribunal. These include murder, enslavement, extermination, deportation and others. See. LSBU Teaching Materials page 18, par. 2.3.3.
General Assembly (2003) “Statement by HE U Win Aung, Minister for Foreign Affairs and Chairman of the Delegation of the Union of Myanmar”
Convention (No. 29) Concerning Forced Labour Adopted on 28 June 1930 by the General Conference of the International Labour Organisation at its fourteenth session entry into force 1 May 1932, in accordance with article 28 from http://www.unhchr.ch/html/menu3/b/31.htm.
Universal declaration of Human Rights from http://www.unhchr.ch/udhr/lang/eng.pdf
http://www.globalmarch.org/worstformsreport/world/burma-myanmar.html
Amnesty International (1999) "Stop Forced Labour in Myanmar" http://web.amnesty.org/library/print/ENGASA160091999
Amnesty International (2000) Human Rights developments in Myanmar http://web.amnesty.org/web/ar2000web.nsf/0/3a9085ff93e50f80802568f200552950?OpenDocument
Amnesty International (1998) "Time to end Forced labour" http://web.amnesty.org/library/Index/ENGASA160221998?open&of=ENG-MMR
Human Rights Watch (2002) “A gun as tall as me” http://hrw.org/english/docs/2004/01/20/burma6966.htm
Amnesty International (2004) "The Rohingya Minority : Fundamental Rights Denied" http://web.amnesty.org/library/Index/ENGASA160052004?open&of=ENG-MMR
Burma Campaign 2004 “” - A report by Altsean from http://www.burmacampaign.org.uk/reports/roadmap.htm
ILO report (1998) “Forced Labour in Myanmar” Part 1, 1.(1)
Apheda – “Forced Labour in Burma” from http://www.apheda.org.au/campaigns/burma_campaign/
Actually all reports of the special rapporteur address the problem of forced labour with most recent the report of P. Pinheiro in January 2004. E/CN.4/2004/33
http://209.190.246.239/ver2/cr/Burma.pdf
Burma Library “Forced Labour in Burma” http://www.burmalibrary.org/reg.burma/archives/199809/msg00222.html
ILO “Forced Labour in Burma-24” from http://www.burmalibrary.org/reg.burma/archives/199809/msg00222.html
World Revolution (2003) “U.S oil companies over trial for human rights abuses in Burma” from http://www.worldrevolution.org/article/968
General information from the ILO website. http://www.ilo.org/public/english/about/index.htm.
Teaching Materials, Lecture 4
Anti-slavery (2001) “Mechanisms to ensure compliance with ILO standards”
The Commission on Human Rights website - http://www.unhchr.ch/html/menu2/2/chr.htm
http://www.stthomasu.ca/new/jphmun/english/assembly.htm
http://www.unhchr.ch/html/menu2/8/oppro.htm
Burma Campaign (2004) “Sanctions Briefing” http://www.burmacampaign.org.uk/sanctions_briefing.html
Burma Campaign (2003) “Coming Clean – British clothing retailers in Burma” http://www.burmacampaign.org.uk/reports/comingclean.html
Burma Campaign (2004) “UK ignores EU Burma Sanctions”
http://europa.eu.int/comm/external_relations/myanmar/intro/
http://www.burma.no/nyhetsarkiv/2004/mars/110304_EP_Resolution.htm
Special Rapporteur in Burma 2004 report
Amnesty International (2003) “Myanmar: Amnesty International's first visit to Myanmar Official statement”
