International Labour Standards & ILO in Burma (Myanmar)

1. International Labour Standards & ILO in Burma (Myanmar) Coen Kompier, ILO New Delhi ckompier@ilodel.org.in Trade union training for FTUB on freedom of association and migrant workers rights New Delhi 18 – 22 December 2006

2. ILO International Labour Standards International Labour Conference: is an international parliament of labour which can set international labour standards (since 1919 ILC adopted 187 conventions and 198 recommendations)

3. ILO International Labour Standards • Conventions are open for ratification • Once ratified, an obligation from international law derives to apply the provisions of the convention in question • Myanmar ratified 21 ILO conventions (of which 19 in force) • Application of conventions is subject to ILO supervision

4. Convention No. 29 (1930) Myanmar ratified ILO Forced Labour Convention No. 29 in 1955 The convention defines forced labour: all work exacted from any person under the menace of a penalty for which the said person has not offered him/herself voluntarily

5. Convention No. 29 Five exceptions exist: 1) Military service 2) Minor community services 3) Prison labour 4) Civic obligations 5) Emergencies

6. Convention No. 29 Adopted to curtail forced labour practices by public colonial powers (see year of adoption) It has many articles but nowadays we only look at: Article 1 (“suppress forced labour within shortest possible period”) Article 2 (definition plus exceptions) Article 25 (“penal offence” with “adequate penalties”) Today, forced labour is more a private sector concern than a public sector concern to which Burma is BIG exception.

7. Convention No. 29 and Myanmar It all started with a “Complaint” (Article 26 ILO Constitution) by the workers representatives at ILC. This happened in June 1996! Subsequently, Commission of Inquiry was established but was not allowed to visit Burma (so, work was done in neighbouring countries)

8. Convention No. 29 and Myanmar: complaint procedure Report by Commission followed in 1998: • Revise Village Act and Towns Act • Stop forced labour practices (especially by military) and make this known to all levels of military and population • Provide budgets to hire free wage labour • Prosecute forced labour as stipulated by article 374 of Penal Code

9. Convention No. 29 and Myanmar: complaint procedure Government did not follow-up appropriately, so In June 1999 ILC adopts resolution stating: • Attitude of Myanmar government “grossly incompatible” with ILO membership • no more technical assistance from the ILO • no participation of Myanmar in ILO meetings (with exception of course of meetings with sole purpose of resolving forced labour matter in Myanmar)

10. Convention No. 29 and Myanmar: complaint procedure Still no compliance of Myanmar authorities to Commission’s demands: ILC adopts resolution under Article 33 of ILO Constitution (a first in ILO history!!!) in June 2000

11. Article 33 Resolution • Special sessions on Myanmar every year until authorities comply • all ILO members should refrain from investing in sectors where forced labour is widespread • share information with other international organisations while asking them to stop any activity abetting forced labour

12. Article 33 Resolution • Inform ECOSOC and ask UN to put Myanmar on agenda of ECOSOC/General Assembly • Periodically report to the ILO Governing Body on outcome of measures

13. Meanwhile ... 1) Two ILO missions to Rangoon (Yangon) in May and October 2000 resulted in adoption of Order 1/99 prohibiting forced labour in reasonably clear terms, also by the army 2) March 2001 Governing Body report and “wait and see” approach by most ILO members 3) High-Level Team missions in September and October 2001 4) Appointment of ILO liaison Officer in May 2002, Richard Horsey who speaks fluently Burmese 5) Draft Plan of Action in May 2003 on complaint mechanism against forced labour practices

14. Plan of Action From May 2003 (when draft Plan of Action was being finalized) onwards process slowed: • Action against National League for Democracy (NPD) • March 2004 three people were sentenced to death (“high treason”) for having complained with ILO about forced labour: (Nai) Min Kyi, Aye Myint (Maung) were visited by ILO Liaison Officer in Insein prison on 19 March 2004 (but did not manage to meet Shwe Mahn alias Zaya Oo) • End of 2004 Prime Minister Khin Nyunt removed

15. Special ILC meeting June 2005 • “Wait and see“ attitude by most ILO members could not continue • Instead, intensify review of relations with Myanmar • Urgently take action, review foreign investment in Myanmar, especially with state-owned or military-owned enterprises • Report to ILO on measures taken

16. What about foreign investment since 2000 resolution? • Since 2001, ADB provided US$887 million in projects, Program of Economic Cooperation in the Greater Mekong Subregion including the Mawlamyine deep-sea port project and the Mawlamyine road section project in Burma. • Union of Myanmar Economic Holding Annual Report 1990-2002, which was fully owned by the Burmese military regime, FDI had been growing significantly, and that most top investors in Burma were ASEAN countries such as Singapore, Thailand, Malaysia and Indonesia. One-third of total FDI was for the oil and gas sectors. Major countries with FDI in Burma from 1990 to 2002 were Singapore, the United Kingdom, Thailand, Malaysia, France and Japan. The leading companies in the oil and gas sectors were: (1) the Daewoo Corporation from Korea; (2) TotalFinaElf from France; (3) Uncoal from the United States; (4) Petroleum Inc. from Canada; (5) TG World Energy Ltd. from Canada. Most importantly, investment was increasing rapidly even after the adoption of the ILO resolution in 2000

17. After special ILC meeting June 2005 • Letter by ILO D-G to 63 international organizations including ECOSOC • Replies by ILO member States, trade unions, employers organizations and other international organizations started to trickle in stating their position

18. Meanwhile in Myanmar • ILO received 80 complaints about forced labour in 2004. In response the authorities: • Between June and August 2005 (semi-official) mass rallies were held highly critical of ILO • In August and September 2005 an “orchestrated” campaign of intimidation against ILO • ILO liaison officer receives death threats • In October 2005 Myanmar authorities indicate to withdraw from the ILO (but this is no longer the case)

19. ILO Governing Body March 2006 Three options were considered if authorities continued to frustrate system of forced labour complaints (which made ILO stop receiving complaints in 2004 because people were in danger such as Su Su Nwe) 1) A binding rule by the International Court of Justice (Article 37.1 of ILO Constitution) 2) Possible establishment by the ILO of a tribunal (Article 37.2 of ILO Constitution) 3) An advisory opinion from the International Court of Justice Please note that all these options are a first of its kind

20. Other developments in 2006 • Mr. Léon de Riedmatten, Yangon representative of Centre for Humanitarian Dialogue and informal ILO Facilitator had to leave the country • Shifting of capital to Pyinmana • Burma on ECOSOC agenda in July • December 2005 informal discussion at UN Security Council with Mr. Ibrahim Gambari present (UN Under Secretary General for Political Affairs) culminating in UNGA Resolution 60/233 on the situation of human rights in Myanmar (23 March)

21. Other developments in 2006 • ILO mission to Yangon on 12 and 13 March with Myanmar Permanent Representative in Geneva U Nyunt Maung Shein • Overview given by ILO Liaison Officer on 2005 activities: • Visited Taninthayi division • Visited Lashio town in Shan state • Remained vigilant on cases against Ma Su Su New, U Aye Myint. In Aunglan (Magway Division) U Zaw Htay, U Thein Zan, U Taung Tun. He received information on FTUB arrests, Thein Lwin Oo, Win Myint, Wai Lin, Myint Lwin, Ye Myint, Aye This Khine, Daw Yin Kyi, Aye Chan, Hla Myint Than while Aung Myint Thein died in custody in November 2005.

22. ILC Myanmar session June 2006 Main questions that remain outstanding before continuing dialogue with government: • How to effectively secure Myanmar’s compliance with recommendations of the Commission of Inquiry? • How to ensure that no action is taken against complainants or their representatives?

23. ILC Myanmar session June 2006 To test willingness of authorities on continued dialogue: • Credibility must be shown on moratorium on prosecutions of complainants, with test cases of releasing Aunglan trio and in particular Aye Myint by the end of July 2006 • Moratorium is strictly binding, and in case of violation ILO members are consulted for further action including article 37.1 legal steps • Agree by October 2006 on credible mechanism for dealing with forced labour complaints including continued presence of ILO Liaison Officer

24. What happened since June 2006 1) Richard Horsey returned to Yangon and met with Deputy Minister for Labour asking release of Aye Myint and others 2) Aye Myint released on 8 July and on 20 September Aunglan trio were acquitted of making false forced labour complaints 3) After several meetings, draft supplementary Understanding submitted to authorities

25. Draft Understanding To formalize a de facto situation where the Liaison Officer can receive complaints about forced labour without any retaliatory for complainants or Liaison officer

26. GB meeting November 2006 Great frustration at the ILO about commitment of Myanmar authorities, despite release of Aye Myint and stopping of prosecutions in Aunglan, because the practice of forced labour continued to be prevalent in Myanmar.

27. General conclusions GB meeting November 2006 • Authorities must agree on complaint mechanism • Prosecution of complaints is violation of C. 29 • Consider legal options at GB session in March 2007 involving International Court of Justice • Make information available to Prosecutor of International Criminal Court • ILO D-G informs UN Security Council (which is now on its formal agenda) • Decide whether ILC of 2007 needs special Myanmar session

28. THANK YOU