Forced labour in Myanmar (Burma)

Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29)
Geneva, 2 July 1998

Appendix I

Supplementary evidence submitted by
the complainants in October 1996

Supplementary evidence to the complaint
under article 26 of the Constitution of the
International Labour Organization submitted
on 20 June 1996 by the Workers' delegates
to the 1996 International Labour Conference
against the Government of Myanmar for
non-observance of ILO Convention No. 29
(31 October 1996)

Contents

Table of authorities

I. SUMMARY

A. Factual findings

B. Legal conclusions

II. PRIOR PROCEEDINGS AT THE ILO

A. Review by the Committee of Experts and the Conference Committee

B. The Article 24 Representation

III. FINDINGS OF FACT

A. Forced labour for public purposes

B. Forced labour for private benefit

C. The law of forced labour in Myanmar

IV. CONCLUSIONS OF LAW

A. The practice of forced labour in Myanmar is a breach of its international obligations under Convention No. 29

B. Myanmar's laws do not comply with Convention No. 29

C. No permissible exception under Article 2 applies

D. A transitional period does not apply in this case and, even if a transitional period applied, the Government of Myanmar has failed to demonstrate compliance with the guarantees that govern such a period

V. CONCLUSIONS

Table of authorities

ILO documents

Constitution of the International Labour Organization (1919).

Convention concerning Forced or Compulsory Labour, 1930 (No. 29).

Conference Committee documents: Records of Proceedings

Reports of the Committee of Experts

General Surveys of the Committee of Experts concerning forced labour

Governing Body reports

Other ILO documents

UN documents

Reports of the Special Rapporteur on the situation of human rights in Myanmar

Other UN documents

Universal Declaration of Human Rights, UN GA Res. 217A, UN doc. A/810 (1948).

International Covenant on Civil and Political Rights, UN GA Res. 2200 adopted 16 Dec. 1966, entered into forced 23 March 1976, UN GAOR 21st Session, Supp. No. 16. UN doc. A/6316.

Report of the Special Rapporteur on torture and other forms of cruel, inhuman or degrading treatment of punishment, 1994, UN doc. E/CN.4/1994/31 (6 Jan. 1994).

Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, 1994, UN doc. E/CN.4/1994/7 (7 Dec. 1993).

Laws and regulations of Myanmar

Villages Act 1908, printed in Burma Code, Vol. VI (1979) (English and Burmese versions).

Towns Act 1907, printed in Burma Code, Vol. VI (1979) (English and Burmese versions).

Penal Code, printed in Burma Code, Vol. VIII (1979).

SLORC Law No. 4/93.

SLORC Law No. 1/92.

SLORC Secret Directive No. 125.

SLORC Secret Directive No. 82.

Statements of the Government to UN

Statement by His Excellency U Ohn Gyaw, Chairman of the Delegation of the Union of Myanmar to the United Nations, New York (3 Oct. 1995).

Letter dated 18 March 1996 from the Permanent Representative of the Union of Myanmar to the United Nations Office at Geneva, Memorandum of observations and comments concerning document E/CN.4/1996/65 of 5 Feb. 1996 pertaining to the Union of Myanmar, UN doc. E/CN.4/1996/139 (21 Mar. 1996).

Memorandum of observations and comments submitted by the Ambassador of the Union of Myanmar to the United Nations, UN doc. E/CN.4/1996/139 (21 Mar. 1996).

Note Verbale dated 4 Nov. 1994 of the Permanent Mission of the Union of Myanmar to the United Nations Office at Geneva, containing the response to the Report of the Special Rapporteur, 1994, reproduced in the Interim Report of the Special Rapporteur in UN doc. A/49/594/Add.1 (28 Oct. 1994).

International decisions

Nuclear tests cases (Australia v. France) (New Zealand v. France). Judgement of 20 Dec. 1976, ICJ Reports.

Frontier dispute. Judgement, ICJ Reports, 1986.

Treatises

Nicolas Valticos, International labour law (1979).

Fact-finding reports

Amnesty International

Anti-Slavery International

Article 19

Australian Council for Overseas Aid

Asia Watch

Burma Action Group

Earth Rights International and Southeast Asian Information Network

Human Rights Watch/Asia

Images Asia

International Commission of Jurists

Lawyers Committee for Human Rights

US Committee for Refugees

United States Department of State

Other authorities

John Doe I., etc. et. al., v. Unocal Corp. et. al. Docket No. 96-6959 LGB (C.D. Cal.), complaint filed in US Federal Court, 3 Oct. 1996.

The National Coalition Government of the Union of Burma and the Federation of Trade Unions of Burma v. Unocal Inc.

Representation under article 24 of the ILO Constitution against the Government of Myanmar (formerly Burma), for its violations of the Convention concerning Forced or Compulsory Labour, 1930 (Convention No. 29 of the International Labour Organization), ratified by Burma in 1955, submitted by the International Confederation of Free Trade Unions on 25 Jan. 1993 to the Director-General of the International Labour Office.

Letter from Beth Stephens, Center for Constitutional Rights, dated 21 March 1995 to Mr. Roger Beach, CEO, Unocal Corporation.

"More information construction of Yangon-Mandalay Union Highway", Myanmar News Agency, 23 Jan. 1996.

Jeremy Mark, "Western firms remain hesitant about investing in Burma, in contrast to Asians' enthusiasm". Asian Wall Street Journal, week of 4 Sep. 1995.

David Ivanovich, "Protesters crash Unocal meeting", Houston Chronicle, 23 May 1995.

"Burma using forced labour on tourist projects", New York Times, 17 July 1994.

I. SUMMARY

This is presented as supplementary evidence to the complaint under article 26 of the Constitution submitted on 20 June by Workers' delegates to the 1996 International Labour Conference (footnote giving name/country) against the Government of Myanmar for non-observance of Convention No. 29 on Forced Labour (1930) which it ratified in 1955. The ILO's prior proceedings in this matter have included more than 30 years of review by the Committee of Experts, two special paragraphs by the Conference Committee, findings of non-compliance with the Convention by a committee established to examine a representation under article 24 of the ILO Constitution ("Article 24 Committee") and the subsequent adoption of those findings by the Governing Body of the ILO.

A. Factual findings

Myanmar is and has been conducting a widespread practice of exacting forced labour in the country. The practice, which affects hundreds of thousands of residents of Myanmar, involves the use of forced labour for public purposes as well as for private benefit. The labour is exacted from men, women and children of villages and towns in various parts of the country as well as from prisoners. Along with the forced labour, the military Government of Myanmar ("Government" or SLORC) is perpetrating severe physical and sexual abuses on many forced labourers including beatings, rape, executions and deliberate deprivation of necessary food, water, rest, shelter, and access to medical care.

Myanmar conducts forced labour practices for public purposes including the following: (1) portering, combat minesweeping, and sexual services for military troops; (2) construction and other heavy labour on development and infrastructure projects that do not benefit and, most often, harm the population from which forced labour is exacted; and (3) heavy work on military construction projects. Myanmar also conducts a practice of forced labour for private benefit in order to: (1) promote joint venture developments, including the country's oil and natural gas reserves; (2) encourage private investment in infrastructure development, public works, and tourism projects; and (3) benefit the private commercial interests of members of the Myanmar military.

Two laws currently in effect in Myanmar authorize forced or compulsory labour to be exacted from the people and provide for fines and imprisonment of those who fail to comply. Those laws, the Villages Act 1908 and Towns Act 1907, fall outside the scope of a law apparently in effect that makes "unlawful" exaction of labour a criminal offence. Other recently uncovered secret military directives implicitly legitimize forced labour practices on development projects by urging that payment be made to forced labourers and that the "misery and sufferings" associated with "undesirable incidents" during forced labour be curbed.

B. Legal conclusions

Myanmar has failed entirely to secure the effective observance of Convention No. 29. It deliberately engages in the practice of forced labour within the meaning of the Convention and commits gross human rights abuses in the context of that practice. It has refused to repeal laws that authorize the practice or to properly make the exaction of forced labour a penal offence. It further has refused to ensure that penalties imposed by law are really adequate and strictly enforced as required by the Convention.

The Government has sought to characterize the arrests and practice of forced labour under menace of threats, abusive practices, fines, and imprisonment as the voluntary contribution of the people of Myanmar pursuant to Buddhist cultural tradition. The evidence demonstrates not only that non-Buddhist minorities are at times subjected disproportionately to forced labour requirements, but also that the practice is conducted under threat of legal penalties and use of physical force.

The Government has represented that it will use only armed forces henceforth on, in its words, "major community development projects". That representation provides no assurances that the Government will stop the use of forced labour on other projects, including support and portering services for the military, or that forced labour on "major projects" could not resume at any time.

None of Myanmar's forced labour practices qualifies as an exception from the Convention's general prohibitions on the use of forced or compulsory labour. The practices fail to satisfy any of the following five narrow exceptions allowed under the Convention: compulsory military service; normal civic obligations; labour as punishment for duly convicted prisoners; circumstances of emergency threatening the population; and minor communal service. In addition, whether a forced labourer is paid makes no difference to the determination of whether the conduct qualifies under any of the five exceptions, despite the fact that the Government has sought to defend its practices by alleging that its forced labourers are paid.

No transitional period applies to exempt Myanmar from its obligation under Convention No. 29 to suppress forced labour in all its forms. The Committee established by the ILO to review the ICFTU's Article 24 Representation on forced portering in Myanmar determined that no transitional period applied. That finding is amply supported as a matter of fact and law. The 40 years since Myanmar ratified the Convention constitutes more than ample time to make required alterations to law and practice to conform to the Convention's requirements. Moreover, the Government itself has admitted that no transitional period applies; such admissions were made in the article 24 proceeding and recently in its observations made to the United Nations relating to reports of forced labour practices.

Finally, even if a transitional period applied in this case, the evidence demonstrates that none of the conditions and guarantees required to be met during the transitional period is satisfied in Myanmar. Forced labour is used for private benefit; forced labor is used widely and systematically as a regular part of the Government's budget; and the practice of forced labour is in no way limited to use as an exceptional measure. Further breaches of the conditions and guarantees required under the transitional provisions of the Convention include inadequate or non-existent regulation of forced labour practices; work that is not of important direct interest for the community from whom the labour is exacted and that is not of imminent necessity; work that lays too heavy a burden on the population; forced labour exacted as a tax without the safeguards required by the Convention, including allowing the forced labourers to remain at their habitual residence and respecting religion, social life, and agriculture; conscripting women, children, and men over 45 into forced labour; failing to limit forced labour duty to 60 days per year; failing to provide cash remuneration in rates of pay equal to the prevailing wage for voluntary labour and failing to observe normal working hours and a weekly day of rest; failing to apply workers' compensation laws and, in any case, meeting the responsibility of maintaining the subsistence of any person incapacitated as a result of performing forced labour; ensuring that people are not moved to different parts of the country in which their health may be affected or, where that is necessary, ensuring gradual acclimatization; for extended periods of forced labour, ensuring appropriate medical care and subsistence of the workers' families and providing for the cost of the workers' journeys to and from the workplace; and abolishing forced portering "within the shortest possible period" after ratification.

Based on the presentation of the facts and discussion of the law in this complaint, the complainants urge that the Governing Body establish a Commission of Inquiry to consider the complaint and to report on the situation in Myanmar. The complainants further recommend that, if established, the Commission of Inquiry should insist on procedures that ensure the safety of witnesses and their families. The complainants request that the Commission of Inquiry make factual findings and draw legal conclusions consistent with those in the complaint, and recommend that Myanmar take immediate remedial measures to comply with and respect the terms of Convention No. 29.

II. PRIOR PROCEEDINGS AT THE ILO

Myanmar ratified the ILO Convention concerning Forced or Compulsory Labour, 1930 (No. 29) ("Convention No. 29") on 4 March 1955.(1) Myanmar's compliance with its obligations under Convention No. 29 has been the subject of long-standing comment by the Committee of Experts on the Application of Conventions and Recommendations ("Committee of Experts") and by the International Labour Conference's Committee on the Application of Standards ("Conference Committee").(2)

A. Review by the Committee of Experts
and the Conference Committee

1. The Committee of Experts

For more than 30 years, the Committee of Experts has reviewed Myanmar's compliance under Convention No. 29. In the 1960s, the Committee examined the Government's practices under the Prisons Act, No. 9, 1894, Villages Act 1908 and Towns Act 1907.(3) In 1968, the Government indicated to the Committee that the Villages and Towns Acts were not in use and that it would consider the adoption of new laws to prohibit forced or compulsory labour. It further represented that forced labour was not used for public purposes in the country.(4) Reviews occurred periodically thereafter with no substantial change in the country's law or practice. In 1991, the Committee of Experts received a report from the ICFTU containing detailed allegations about the practice of forced portering, to which the Government failed to respond.(5)

In 1993, the ICFTU lodged a representation under article 24 of the ILO Constitution concerning the practice of forced portering in Myanmar ("Article 24 Representation").(6) Accordingly the Committee of Experts suspended its examination of this aspect of Myanmar's forced labour practices. The Committee of Experts also sought the Government's comments on forced labour practices other than portering alleged in the report of the Special Rapporteur on the situation of human rights in Myanmar appointed by the United Nations Commission on Human Rights.(7)

In 1995, the Article 24 Committee recommended that the Villages Act 1908 and the Towns Act 1907 be amended or repealed; and that there be necessary follow-up action including strict punishment of those subsequently having recourse to forced labour. The Committee of Experts expressed the hope that the Government would take corrective action, and noted that the powers provided in the Villages Act 1908 and the Towns Act 1907 allow for the exaction of forced labour.

Because the Government of Myanmar had not submitted a report under article 22 of the ILO Constitution, the Committee of Experts addressed the Government's response to the Article 24 Committee that there was no forced labour in Myanmar but rather a widespread cultural tradition of voluntary contributions of labour contemplated by Article 2(2)(e) of Convention No. 29.(8) The Committee noted that the work contemplated must be minor, and that the services must be performed in the direct interest of the community and not relate to the execution of works intended to benefit a wider group". The Committee of Experts indicated that "[t]he construction of a railroad would not appear to meet either of these criteria". The Committee further noted that the continuing existence of the powers provided in the Villages Act 1908 and the Towns Act 1907 made it "difficult to establish that residents performing work at the request of the authorities are doing so voluntarily".(9)

In 1996, the Committee of Experts reiterated its previous findings concerning the Villages Act and the Towns Act and its view that they provide for forced labour within the meaning of Convention No. 29. The Committee of Experts noted with concern the Government's response to the Conference Committee's request in 1995 for remedial action and a detailed report.(10) The Committee further noted that, ever since 1967, the Government had been stating that the Villages Act 1908 and the Towns Act 1907 had fallen into disuse, and that they were to be amended or repealed. The Committee remarked that: "[t]he Government's latest report persists in blurring the distinction between compulsory and voluntary labour and contains no indication whatsoever that concrete measures have been taken to abolish the powers to impose compulsory labour either in law or in practice".(11) The Committee requested the Government of Myanmar to supply full particulars to the International Labour Conference at its 83rd Session in June 1996.

2. The Conference Committee

In the last five years, the Government of Myanmar has been called before the Conference Committee three times concerning its obligations under Convention No. 29. On two of those occasions, its failures to comply have been mentioned in special paragraphs of the Conference Committee's report.

In 1992 the Conference Committee noted that the Government had not supplied its report under article 22 in time, and urged the Government to report to the ILO in the very near future.(12) A Government representative indicated to the Committee that: (1) there was no practice of forced labour in Myanmar; (2) porters who worked for the army did so voluntarily; (3) recruitment of porters was in accordance with section 8(1)(n) of the Villages Act 1908 and section 7(1)(m) of the Towns Act 1907; (4) there were conditions governing recruitment of porters; (5) porters were not mistreated or used in military roles; (6) they were entitled, among other things, to the same medical treatment as soldiers in the event of injury; and (7) comprehensive and elaborate laws effectively prevented the practice of forced labour on the ground.

In 1995, the Conference Committee "called upon the Government to urgently repeal the offensive legal provisions under the Villages Act 1908 and the Towns Act 1907 to bring them into line with the letter and spirit of Convention No. 29, to terminate forced labour practices on the ground, to provide for and award exemplary penalties against those exacting forced labour, and to furnish a detailed report on legislative and practical measures adopted to fall into line with Convention No. 29. The case was mentioned in a special paragraph of the Conference Committee's report(13)

In 1996, the Conference Committee again issued a special paragraph, in which it "once again firmly required the Government formally to abolish and urgently to cancel the legal provisions and to abandon all practices that were contrary to the Convention. The Committee urged the Government to prescribe truly dissuasive sanctions against all those having recourse to forced labour".(14) In a separate special paragraph the Conference Committee noted "with great concern" the case of Myanmar as one of continued failure to eliminate serious deficiencies.(15)

B. The Article 24 Representation

By letter of 25 January 1993, the ICFTU submitted a representation under article 24 of the ILO Constitution alleging non-observance by the Government of Myanmar of Convention No. 29.(16) The Governing Body established a committee to examine the representation, which issued its report on 7 November 1994.(17) The recommendations of the Article 24 Committee were subsequently adopted by the Governing Body, in November 1994.(18)

The ICFTU alleged that the Government of Myanmar had breached Convention No. 29 by institutionalizing "the use of forced labour by military commanders through the [practice of] forced recruitment and abuse of porters".(19) Based on credible reports the ICFTU alleged that men, women and children were routinely rounded up by police and the military to perform portering services under arduous and abusive conditions, including insufficient food, lack of medical care, minesweeping, rape and extrajudicial execution. The ICFTU further alleged that: (1) the practice of forced portering constituted forced or compulsory labour as defined in Convention No. 29; (2) no exceptions in the Convention were applicable; (3) Myanmar was not in any transitional period contemplated by Convention No. 29; (4) none of the guarantees and conditions applying to the practice of forced labour during the transitional period were being met by the Government of Myanmar; and (5) the Government of Myanmar had failed to comply with its obligation under Article 25 of Convention No. 29 to penalize those who exact forced labour from others.(20)

The Government of Myanmar communicated with the Article 24 Committee twice.(21) It asserted that: (1) there was no practice of forced labour or slavery but rather the population voluntarily contributes labour in pursuance of a centuries-old tradition of such voluntary contribution; (2) the military recruits and employs porters to support its campaigns against insurgent groups near the frontiers in accordance with relevant provisions of the Villages Act 1908 and the Towns Act 1907; (3) there was no truth in the varied allegations concerning the abusive nature of portering work and the conditions under which it is performed, and medical care was provided when necessary; and (4) the guarantees concerning the manner of performance of forced labour provided for in Articles 8-16, 18, 23 and 24 of Convention No. 29 were satisfied.(22)

The Article 24 Committee made the following findings and recommendations:

(a) the Villages Act 1908 and the Towns Act 1907 provide for the exaction of forced or compulsory labour under the menace of a penalty in breach of Convention No. 29;(23)

(b) the Government of Myanmar had "supplied no indications that would bring compulsory porterage within the scope of one of the exceptions provided for in Article 2, paragraph 2, of the Convention";(24)

(c) the Government of Myanmar had not invoked the concept of a transitional period in its responses to the Article 24 Representation. This was consistent with the position it had taken in its reports submitted under article 22 of the ILO Constitution concerning its compliance with its obligations under Convention No. 29. In those reports the Government had consistently stated that both the Villages Act 1908 and the Towns Act 1907 were obsolete colonial era laws, and that the powers they provided were no longer exercised;(25)

(d) compliance with the obligations in Article 25 of Convention No. 29 required the immediate repeal of the relevant provisions of the Villages Act 1908 and the Towns Act 1907, and also penal prosecution of those resorting to coercion of labour. The Article 24 Committee noted that "[t]his appears all the more important since the blurring of the borderline between compulsory and voluntary service labour, recurrent throughout the Government's statements to the Committee, is all the more likely to occur also in actual recruitment by local or military officials".(26)

III. FINDINGS OF FACT

The Union of Myanmar is conducting a widespread practice of forced labour for public purposes as well as for private benefit. Among the public purposes documented in this section are: (1) portering, combat, minesweeping and sexual services for military troops; (2) development and infrastructure projects to the detriment of the general population; and (3) military construction projects. As demonstrated below, the Government of Myanmar uses forced labour for private benefit in order to: (1) promote joint venture developments, including the country's oil and natural gas reserves; (2) encourage private investment in the tourist industry; and (3) benefit the private commercial interests of military members. As discussed in this section, the current law of Myanmar authorizes forced or compulsory labour to be exacted under the pain of penalty. That law overrides any government directive attempting to curb abusive practices relating to forced labour on development projects, and any law making exaction of forced labour a criminal offence.

A. Forced labour for public purposes

1. The Government of Myanmar uses forced labour
to perform portering, combat, minesweeping
and sexual services for military troops

Military campaigns in Myanmar are characterized by consistent, widespread and systematic use of the civilian population for portering duties. Along with portering, the forced labour duties have typically involved provision of minesweeping, combat and sexual services. One documented study has noted that "[t]he conscription of hundreds of thousands of porters (including from the Burman majority) has been reported in every ethnic minority state and every division of Burma".(27)

The contemporary practice of forced portering in the service of the Myanmar army (in Burmese "Tatmadaw"), has historical links to the time of Japanese occupation and British colonial rule.(28) The Government of Myanmar has variously denied that the practice exists, and claimed that when portering occurs it happens according to strict conditions, according to law, and at the voluntary offering of the people involved in the work.(29) Despite these statements, "the evidence is irrefutable that, in the absence of proper roads or transport, thousands of villagers are forced into carrying arms and supplies for all major military operations".(30) Since 1988, ex-army officers have confirmed that "for most military operations in the war-zones an average of one porter is taken along for each soldier on the mission".(31)

The vast majority of people who have worked as porters are forced to do so through various methods documented and corroborated by independent and reliable sources.(32) Village headmen are frequently notified of the quota of porters they must fill, and are under legal obligation to do so.(33) The only alternative is to pay large sums of money to the local military command, known as "porter fees". Arrest is a common means of obtaining porters, and unless a civilian has enough money to bribe the soldier(s) to let them go, there is no alternative but to work as porters. Apart from these more formal, or organized means of pressing civilians into work as porters, people are commonly rounded up by the local police or the military from public places such as movie theatres, coffee houses, video shows and train stations. They are put into trucks and taken away to serve as porters. In some cases they are taken long distances from where they are seized, in order to discourage them from trying to run away. As noted by the UN Special Rapporteur: "[m]any of the victims of such acts ... are peasants, women, daily wage-earners and other peaceful civilians who do not have enough money to avoid mistreatment by bribing".(34)

Calls into service appear to be arbitrary and widespread. One man explained that he had been arrested frequently to work as a porter, preventing him from carrying out his normal work as a carrier of goods: "In one year I'm taken as porter perhaps ten times, sometimes for ten days, sometimes for two months ...".(35) If the SLORC is conducting a major operation, military commanders will take hundreds or thousands of people to work as porters, depending on their perceived needs. Those needs are calculated mindful of the certainty that many porters will escape as soon as they can, and need to be replaced.

Considerable evidence reveals that men, women, children and the elderly alike are taken to serve as porters, despite claims by the SLORC that there are restrictions and requirements as to which people will be allowed to work as porters and under what conditions.(36) "[T]he army regularly takes porters indiscriminately ... when troops need a large number of porters, they take women aged 15 through 60 as well."(37)

Prisoners are among the civilians who have been pressed into service as porters for SLORC troops. Prisoners are made to work in leg chains and are singled out for especially harsh treatment.(38) Many prisoners who have been taken to work as porters have died at the front lines, often as a result of ill-treatment at the hands of SLORC troops.(39)

Documented reports and individual testimony of the circumstances in which civilians are forced to labour as porters demonstrate the abusive "working" conditions. Porters held in military custody carry loads of foodstuffs, ammunition and weapons that can weigh from 30 to 60 kilograms. They labour for long hours every day, and receive insufficient food, water and rest.(40) They rarely receive medical attention despite a wide range of illness and injury from which they suffer as a result of forced labour, including malaria. Along with disease, porters suffer wounds received during the course of battle or in minesweeping operations,(41) and injuries from the excessive loads they are made to carry. If any of these circumstances prevents porters from being able to continue work, the SLORC troops often abandon them where they collapse from exhaustion, without any medical care or assistance at all.(42)

Many porters suffer beatings and other forms of physical abuse at the hands of SLORC troops, often leaving them with severe injuries. The UN Special Rapporteur on Myanmar considered that some of the most serious human rights violations of which he had been informed occurred in the context of forced portering.(43) Abuses include beatings,(44) extrajudicial and summary executions,(45) and rape, including gang rape, of women who are taken for portering duties.(46)

Beating by soldiers with sticks and rifle butts when a porter cannot continue is commonplace.(47) Porters, who have escaped and been interviewed, have experienced and witnessed beatings. They describe being subjected to "physical abuse and inhumane treatment from the moment of capture ... [most] had been severely beaten ... when they slipped or fell from exhaustion, and all [interviewed] had witnessed the deaths of fellow porters".(48) At night. men and women porters are separated from each other. Many of the women are repeatedly raped by SLORC soldiers, at times in gang fashion.(49)

Porters have commonly been used in military roles, and many die as a result "Interspersed as human mules between soldiers in each marching column, they are thus brought directly into the frontline of the war".(50) Once they have arrived at the frontline, porters are frequently required to perform a number of military tasks. For example, although unarmed themselves, they have been placed at the head of columns to detonate mines and booby traps, and to spring ambushes. As noted by one investigative group, "[a] particularly disturbing aspect of the phenomenon ... concerns the military's practice of sometimes using civilian porters during frontline operations as 'human shields'".(51)

Commonly porters are sent as minesweepers to clear paths and fields where mines have been laid.(52) While the use of children as porters is objectionable per se, it is all the more disturbing that the SLORC does not protect children against requirements to perform military duties after conscription as porters.(53)

2. The Government of Myanmar uses forced labour
on development and public works projects that
are not in the direct interest of the community,
and in fact harm community life(54)

(a) Forced labour practices on development projects are widespread
and affect hundreds of thousands of civilians

The widespread use of forced labour in Myanmar for development and construction projects touches the lives of a vast number of Myanmar's people, including men, women, children and the elderly. The total number affected reaches into the hundreds of thousands on various projects.(55) Forced labour is used in Myanmar for a wide range of projects, including infrastructure development, and tourist development projects.(56) Typical labour duties include the construction of roads, railway lines and airfields.(57) The military government has also forced many thousands of people to "contribute" their labour to tourist development projects as part of the preparation for and conduct of 1996 as "Visit Myanmar Year".(58)

Prisoners from around Myanmar are also routinely required to work in construction projects.(59) They are made to work on roadbuilding, as well as the breaking of rocks for roadbuilding. Generally prisoners are taken to labour camps near the projects on which they are to work. Conditions in the labour camps are harsh, and the work is difficult. Many prisoners die in the course of this work. There have been reports that political prisoners are among those taken to the labour camps.(60)

(b) Forced labour on development projects
is systematic and organized

Forced labour on development projects in Myanmar follows systematic and organized patterns, and the evidence discloses large increases in forced labour in recent times.(61) Although some people have been transported to different parts of the country to work on forced labour projects, "usually the construction work is organized on a village or township basis. For local projects each family (or street or block) is ordered by the district LORC [Law and Order Restoration Council] to provide a specific number of labourers to complete a particular task, such as breaking a quantity of rocks or digging a section of road".(62) As noted by one human rights group, "it is ... usually left to the headman to choose which families will work at which times, on a rotating basis. There is no option to choose not to go; the only alternatives to going are to pay heavy fines ('porter tax') or to flee the area".(63) Funds to pay labourers are rarely available, and almost never reach those who do the work.(64) In cases where villagers have neither fled nor complied with the orders, they have suffered reprisals at the hands of the local SLORC troops. Retribution has included the infliction of beatings and torture upon the village headman,(65) and threats to kill those who do not contribute labour.

(c) Harsh working conditions and human rights abuses
are common on development projects

Forced labour on construction projects is itself arduous and exhausting, consisting of manual labour to dig ditches, build embankments, and lay roads, dams and railways. The hours of work are long with little opportunity to rest, and little or no water or food are supplied. Reports suggest that people have been forced to stay overnight at the site of their work, commonly to sleep on the roads they are building, irrespective of the weather conditions.(66) Deprivation of medical care results in disease and other health problems. Many of the forced labour camps are in areas where malaria is rife.(67) In other cases, climatic change has a severe impact on the hill people transported from their home environments.(68)

As with those who are forced to work as porters for the Tatmadaw, gross human rights abuses in the course of forced labour on development projects are routine.(69) The Special Rapporteur on Myanmar has noted that the worst human rights abuses of which he was informed occurred in the course of forced labour on development projects, as well as forced portering.(70) There have been repeated reports that people forced to work on construction projects suffer beatings, torture, disappearance and summary execution.(71) Women and children suffer these abuses, as well as men,(72) and some women labourers are also raped at night by soldiers.(73)

(d) The practice of forced labour on public development
and infrastructure projects harms the social and
economic life of the people of Myanmar

The practice of forced labour is destructive to the social and economic life of the people affected by it. As noted by a leading investigative group, "forcible conscription of civilians into compulsory labour duties for the military authorities ... further disrupts family life and pushes many families deeper into poverty"(74) in a country which is already one of the world's poorest. In Arakan State, for example, many of the people are day labourers, for whom the impact of being forced to work for nothing for the SLORC is compounded by the loss of opportunity to take what little paying work is available.(75) Family life is further destroyed as children are compelled to help fill the family's quotas for forced labour projects while their fathers continue to try to find voluntary, paid work.(76) The children themselves are thus deprived of education and childhood life.

The forced labour services of certain family members disproportionately shifts the burdens of the family's income-generating activity, and negatively affects the rural economy and, as a result, nutrition and health. While men are away on forced labour projects, "the burden of agriculture falls on the women. With depleted numbers in the community it becomes more difficult to plant, tend and harvest crops. Crop failure, malnutrition and disease are a result".(77) The impact of forced labour practices on the health of women and children is significant.(78) Indeed, "the forcible conscription of women, including girls, pregnant women and the elderly, into compulsory labour duties on government construction projects or even as porters in the war zones ... has major health and humanitarian implications for the whole of Burmese society, since not only does forced labour in itself have an extremely detrimental impact on health, but it is in the course of forced labour duties that many of the worst human rights violations against women, including rape and threats to life, have been committed".(79) The widespread practice of rape destroys the personal, familial and village lives of the women who suffer such abuses.(80)

(e) The development and infrastructure projects for which
the Government uses forced labour do not benefit
the community supplying the forced labour

The benefit from the development projects to the community from which forced labour is exacted is illusory or non-existent.(81) In many cases, whole villages are forcibly relocated in order for projects to go ahead.(82) In most cases the roads and railways under construction are intended to benefit the SLORC rather than any community in Myanmar. Roads and railways are designed for transporting troops to areas where the SLORC seeks to exercise greater control, and to facilitate tourist development.(83) In any case it is doubtful whether the construction of parts of major roads can be seen as beneficial to small communities; poverty is such that local people cannot afford road or rail travel.(84)

A number of sources are available to estimate the economic or market value of forced labour. They include the Government's own economic figures, as published in its statistical Annual Review, as well as data from World Bank and International Monetary Fund reports. In addition, the Government of the United States has issued a detailed account of what it calls "the market value of uncompensated and largely involuntary labor employed ... in public works projects", principally construction of roads and bridges in local development projects. According to the Foreign economic trends report: Burma, issued by the US Department of State in June 1996 and based primarily on the Government's own Annual Review, during the financial year 1994-95 that market value was approximately 3.1 per cent of the gross domestic product, figured on the basis of the official exchange rate for the kyat, Burma's currency.(85) During that period, the share of "people's contributions" in the cost of state projects was 53.9 per cent of the total value of expenditure.(86) In addition, SLORC's economic data reveals that the money saved by its forced labour programmes is diverted to increase military and other expenditures that do not benefit the people or provide for their basic needs. In fact, available data for those years indicate that government expenditures in the military procurement rose in part as a result of the windfall in the government budget in forced labour savings in public works.(87)

3. The Government of Myanmar uses forced labour
on military construction projects

Forced labour exacted from the people of Myanmar is put to use in the construction of military facilities. Civilians reportedly have been forced to work on the construction of military and border police barracks.(88) Other forms of labour on behalf of the military have included building and maintaining military roads, and building and servicing military camps.(89)

B. Forced labour for private benefit

1. The Government of Myanmar uses forced labour to
promote private benefit in joint venture developments,
including the country's oil and natural gas reserves

The Government of Myanmar has sought to attract foreign investment to develop what are thought to be substantial natural gas and oil reserves in the country. Since 1992, reports from various sources consistently corroborate the Government's use of forced labour on a massive scale in parts of Myanmar where exploration of oil and gas resources, and associated works to build necessary infrastructure, are occurring.(90) The projects for development of oil and gas reserves include the Yadana gas pipeline project offshore from Mon State, and the Sagaing division test drilling project.

The Yadana gas pipeline represents the most advanced project for the development and exploitation of Myanmar's natural gas and oil reserves, and is operated as a joint venture between TOTAL, a French oil company, Unocal, a US oil company, and MOGE (Myanmar Oi1 and Gas Enterprises), a company wholly owned by the SLORC.(91) Widespread and persistent reports confirm that people living in the vicinity of the pipeline route are regularly forced to work construction of the pipeline route itself, and on related infrastructure.(92) Reliable reports of human rights abuses, including torture, rape, summary and arbitrary executions, and forced relocations as a result of forced labour have been documented and recently confirmed as to 11 villages in the region.(93) These reports are denied by both the Government of Myanmar,(94) and by the oil companies involved in the project.(95)

Construction of the 100-mile Ye-Tavoy railroad, thought to be associated with the development of the gas reserves and the installation of the pipeline, has resulted in relocation of ethnic Mon and Karen, fleeing forced labour duties.(96) To this extent at least, then, the railway appears to be connected with the construction of the pipeline, and its construction is of benefit to the private oil companies participating in the joint venture.

In addition, a Korean company, Yukong Oil Company, had a test well in Htaw Tha village in the Sagaing division. People who were forced to work on the construction of a road between Manywa and Khamti reported that a police post had been set up in the area to which men, women and children labouring in the area brought supplies night and day for police guards and for workers. (97)

2. Forced labour is used for the benefit
of private investors in development,
public works and tourism projects

As noted above, widespread use of forced labour on a significant scale supports the development of tourist infrastructure.(98) In addition, the Government recently has adopted a practice of inviting local investors to participate in the construction of highways and railroads with the incentive of return on their investments through the eventual establishment of toll gates to collect fees for the use of the roads.(99) The Government has announced that the privatization of infrastructure development is "part and parcel of plans to create more job opportunities for the people",(100) a strategy which appears to involve the implementation of development projects "by the Government, counting on the participation of the local people in the contribution of labour ...".(101) In Myanmar, most of the money made in the tourist industry is made in the airline and hotel industries, owned in part by foreign companies from Hong Kong, Malaysia, Singapore and Thailand.(102) These companies have reported benefits from the increased profits during 1996 Visit Myanmar Year, attributable in part to work of forced labourers on tourist attraction projects.(103)

3. The Government of Myanmar uses forced labour
for the private commercial interests
of military members

The commanding officers within the Tatmadaw are regularly reported to be involved in a variety of their own commercial ventures in the country, including shrimp cultivation, paddy and fishpond operations, tree-planting and timber cultivation. Following the pattern of forced labour that is evident in public projects, the military regularly forces the civilian population into service to suit their own commercial interests. For example, in Mergui-Tavoy district reports indicated that Karen people have been forced to work without pay on a large rubber plantation, and also in the construction of a dike for shrimp farming operations; it was reported that as many as 13,000 people were compelled to work on these projects.(104)

C. The law of forced labour in Myanmar

1. Myanmar law provides for forced or
compulsory labour to be exacted from
the people on pain of penalties

Two laws in effect in Myanmar, the Villages Act 1908 and the Towns Act 1907, authorize forced or compulsory labour to be exacted from the people on pain of penalties. The laws authorize portering, transport and other services to be exacted for government troops, police and officers "in the execution of their public duties", and provide for fines and, in the case of the Villages Act 1908, imprisonment of up to one month, for failure to comply. The laws also authorize a class-based discrimination in the selection of "the labouring class" for such work. Unlike the English version quoted below, the Burmese explanatory version of the laws reportedly allows for no "reasonable excuse" or "reasonable cause" to exempt one from penalty.(105)

The English version of the relevant sections of the Villages Act 1908 provides as follows:

8(1) Every headman shall be bound to perform the following public duties, namely:

...

(g) to collect and furnish, upon receipt of payment for the same at such rates as the Deputy Commissioner may fix, guides, messengers, porters, supplies of food, carriage and means of transport for any troops or police posted in or near or marching through the village tract or for any servant of the Government travelling on duty; provided that no headman shall requisition for personal service any resident of such village tract who is not of the labouring class and accustomed to do such work as may be required;

...

(n) generally to assist all officers of the Government in the execution of their public duties; and

(o) generally to adopt such measures and do such acts as the exigency of the village may require.

...

10. If a headman or a rural policeman neglects to perform any of the public duties imposed upon him by this Act or a rule thereunder, or abuses any of the powers conferred upon him by this Act or any such rule, he shall be liable, by order of the Deputy Commissioner, to pay a fine not exceeding 50 rupees.

11. Every person residing in a village tract shall be bound to perform any of the public duties, namely:

...

(d) on the requisition of the headman or of a rural policeman, to assist him in the execution of his duties prescribed in sections 7 and 8 of the Act and the rules made under the Act.

Explanation: A requisition under clause (d) may be either general or addressed to an individual.

12. If a person residing in a village tract refuse or neglects to perform any of the public duties imposed upon him by this Act or by any rule thereunder, he shall, in the absence of reasonable excuse, the burden of proving which shall lie upon him, be liable:

(i) by order of the headman, to fine not exceeding five rupees, or

(ii) by order of the village committee, on the case being referred to it by the headman, to fine not exceeding ten rupees, or to confinement for a term not exceeding 48 hours in such place as the Deputy Commissioner may appoint in this behalf, or to both, or

(iii) on conviction by a magistrate, to fine not exceeding 50 rupees, or to imprisonment for a term not exceeding one month, or to both.(106)

The English version of the relevant sections of the Towns Act 1907 provides as follows:

7(1) The headman of a ward shall be bound to perform the following public duties, namely:

...

(1) to collect and furnish, upon receipt of payment for the same in advance at such rates as the Deputy Commissioner, with the sanction of the Commissioner, may from time to time fix, guides, supplies of food, carriage, and means of transport for any troops or police posted in or near or marching through or near the town;

Provided that no headman shall be bound to collect supplies beyond the limits of the ward of which he is headman, or to furnish carriage or means of transport for more than 12 hours' journey from such town unless the Deputy Commissioner certifies in writing that it is necessary in the public interests that carriage or means of transport should be supplied for a longer period, in which case the Deputy Commissioner shall fix higher rates of payment than the rates of payment for journeys of 12 hours or less;

Provided also that no headman shall requisition for personal service any resident of such ward who is not of the labouring class and accustomed to do such work as may be required; and

(m) generally to assist all officers of the government and municipal officers in the execution of their public duties.

...

9. Persons residing in a ward shall be bound to perform the following public duties, namely:

...

(b) on a general or individual requisition of the headman to assist him in the execution of his public duties.

9A. If any person residing in a ward refuses or neglects to perform any of the public duties imposed upon him by this Act or any rule thereunder, he shall, in the absence of reasonable cause, the burden of proving which shall lie upon him, be liable, on conviction by a magistrate, to a fine which may extend to 50 rupees.

In 1995, the Government of Myanmar admitted that "the two laws were no longer in conformity with the prevailing conditions in the country, besides not being in line with the provisions of the ILO Convention of 1930 (No. 29)".(107) The statement appeared to be an acceptance of the ILO's conclusions and recommendations for repeal of the laws upon review of the situation for some 34 years.(108) Despite repeal of some 150 laws in the past several years,(109) the Government of Myanmar has not yet repealed the two laws authorizing forced labour.(110)

2. The Government of Myanmar has issued
directives that legitimize the practice of
forced labour on development projects

Two recent government directives acknowledge the extent of the practice of forced labour on development projects, and seek to maintain the practice under specific circumstances.(111) Directive No. 125, dated 2 June 1995, purports to be an instruction from the Chairman of the SLORC, the military junta in control of the country, to all State/Division Law and Order Restoration Councils. The directive thus was intended for national distribution. Under the directive as reported by the Special Rapporteur, the SLORC prohibits unpaid labour contributions in national development projects and requires that "in obtaining the necessary labour from the local people, they must be paid their due share". In addition, the directive instructs the authorities concerned to "avoid undesirable incidents", a reference that appears in context to relate to "causing misery and suffering to the people in rural areas ...".

The other directive, No. 82, is purportedly of more narrow application, dated 27 April 1995, and sent from the SLORC Chairman to the Yangon Division Law and Order Chairmen and the Ministry of Agriculture. The directive instructs the recipients "to stop the practice of obtaining labour from the local people without monetary compensation" as applied to the construction of dams in Yangon division.

Neither directive contains language abrogating any of the terms of the Villages Act 1908 and Towns Act 1907 authorizing forced labour, and indeed the directives serve to legitimize the practice of forced labour by authorizing it to proceed with compensation and without "undesirable incidents". Neither directive contains any penalties for breaches of the directives themselves. In addition, as noted by the Special Rapporteur several months after their publication, the directives were "still not public and therefore not accessible to those to whom they would apply and to those protecting the rights of persons accused of breaking the laws".(112)

3. The laws authorizing forced labour in Myanmar fall
outside the scope of a criminal law punishing the
"unlawful" exaction of forced or compulsory labour

A criminal law may be in effect in Myanmar making the "unlawful" exaction of forced or compulsory labour punishable as a criminal offence. Section 374 of the Penal Code provides:

"374. Whoever unlawfully compels any person to labour against the will of that person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."(113)

The terms of the Villages Act 1908 and the Towns Act 1907 can be read as lawful authorization to compel labour and thus are outside the scope of the criminal statute.

IV. CONCLUSIONS OF LAW

A. The practice of forced labour in Myanmar
is a breach of its international obligations
under Convention No. 29

1. Myanmar's practice of forced labour breaches
its obligations under Convention No. 29

The facts demonstrate that "work and services" are being exacted from people in Myanmar "under the menace of penalty", as prohibited by Convention No. 29. Penalty should be taken to include both penalties as a matter of law, and those effective in fact. The term should include any real threat or imposition of actual personal, physical, or financial loss, harm or hardship, whether by administrative or judicial proceeding, of by any other exercise of ostensible governmental power. Penalty is not limited to penal sanctions: it includes any loss of rights or privileges.(114) This indicates that a broad and purposive interpretation is appropriate, so as best to achieve the Convention's object of the suppression of forced and compulsory labour in all its forms within the shortest possible period.(115)

The practices in Myanmar described above are all conducted under the "menace of penalty" within the meaning of the Convention. By the Government's own admission, portering services are exacted pursuant to the Villages Act 1908 and the Towns Act 1907, which provide criminal penalties for failure to supply labour in accordance with their terms.(116) In addition, work and services other than portering are exacted by force, threat of force, including work on development projects, tourist projects, sexual services and labour for private benefit. The evidence demonstrates that much of the labour is performed subject to detention, beating, torture and other physical harm. Sexual services exacted from Burmese women by way of rape are conducted by force or by threat of force.(117) Moreover, labour performed in circumstances where the only alternatives to its performance are payment of fees, or expenditure to hire a substitute labourer, is performed under the menace of a penalty.

The facts further demonstrate that, in the incidents at issue, the persons performing the work and services did not offer themselves voluntarily. As a matter of law, labour obtained through legal compulsion cannot be taken to have been offered voluntarily. Sexual services exacted from Burmese women by way of rape that result in actual physical loss, harm and hardship are, ex hypothesi, not offered voluntarily. Nor can labour by prisoners, or children (in particular the more exploitative form of labour by children)(118) be considered to be performed voluntarily.

Any payment received by the people who perform the work and services described is irrelevant to a determination of the question whether the work and services were offered voluntarily. Indeed, the Convention appears to contemplate that payment and compulsion can occur simultamously. In setting guarantees and terms for forced labour practices under the now-lapsed transitional regime,(119) the Convention prescribes rates and methods for strict cash remuneration under Article 14, except where the labour is being exacted as a tax under the now-lapsed terms of Article 10.(120)

Contrary to the assertions of the Government of Myanmar, labour is not contributed voluntarily by the people pursuant to Buddhist cultural tradition. The facts demonstrate that people are compelled to work, under the menace of penalties, and that they are commonly seized to perform work. The facts also demonstrate that Rohingya Muslims, Karen Christians and other predominantly non-Buddhist ethnic groups are called upon to perform forced labour.(121) The military junta's extension of the colonial practice has eroded the social and economic fabric of village life, thereby harming cultural tradition.

The Government of Myanmar recently stated to the Conference Committee that, having reached cease-fires with 15 of 16 insurgent groups, only members of the armed forces would be used henceforth on "major development projects".(122) However, that statement fails to demonstrate compliance with Convention No. 29. The limiting word "major" before "community development projects" implies that forced labour will still be used on other projects. Furthermore, the evidence demonstrates that, where military services are supplied, the people's forced labour is still used for construction of military barracks as well as for services such as portering, supply of food, and messengering.(123) In addition, the Tatmadaw, which is to retain its military duties along with the new development tasks,(124) does not have the human resources to provide labour on the scale that apparently is required by the SLORC for its development projects; the record demonstrates that the supply of forced labour used thus far exceeds 800,000 people.(125) Finally, the Government's position provides no lasting guarantee of compliance with Convention No. 29 and freedom from forced labour for the people of Myanmar. The laws and directives authorizing forced labour remain in effect, and sliders may be called back to combat or other duties at any time.

Whether or not the Villages Act 1908 or the Towns Act 1907 are expressly relied upon, the fact of their continued operation of itself makes it difficult to be confident that any contributions of labour are, in fact, voluntary.(126) Indeed, the, Article 24 Committee noted in this respect that "the blurring of the borderline between compulsory and voluntary labour [was] recurrent throughout the Government's statements to the Committee, is all the more likely to occur in actual recruitment by local or military officials".(127) The texts of the secret directives issued during 1995(128) admit and continue to authorize forced labour in Myanmar. The Government of Myanmar's own published budget and economic figures reflect the significant and increasing role of "people's contributions" in its plans for development.(129) In the absence of any convincing evidence that the "people's contributions" are in fact labour which is voluntarily donated, or properly remunerated, these figures, should be taken as an admission that forced labour occurs in Myanmar on a massive scale.

2. Myanmar's failure to completely suppress forced labour
for private benefit violates Convention No. 29

The facts demonstrate that Myanmar has blatantly violated its immediate obligation to completely suppress forced labour for private benefit. It is exacting forced labour from the people in its joint venture development projects in the oil and gas sector,(130) infrastructure development (railroads and highways),(131) and the tourism industry.(132) Further evidence reveals that members of the military practice forced labour for their own private commercial benefit, with impunity.(133) Where the practice of forced or compulsory labour for the benefit of private associations, companies and individuals exists, it should be "completely" suppressed from the date of Convention No. 29 coming into force,(134) and it should not be permitted thereafter.(135)

3. Myanmar's failure in practice to pursue and to punish
those who exact forced labour breaches its obligations
under Convention No. 29

There is no credible evidence of any active steps by the Government of Myanmar to bring about an end to the practice of forced labour. Prosecution under the Penal Code by its terms would fail to cover forced labour conducted pursuant to the Villages Act 1908 and the Towns Act 1907. The issuance of the secret directives, rather than purporting to end the practice, further legitimizes the practice by addressing circumstances under which forced labour can be imposed.(136) No report has become available of any attempt to pursue prosecution of any person or organization responsible for the exaction of forced labour.

B. Myanmar's laws do not comply with Convention No. 29

1. The Government of Myanmar has breached its
duty under Convention No. 29 because it has
failed to repeal or amend its laws that permit
the exaction of forced labour

The Government of Myanmar has admitted that the Villages Act 1908 and the Towns Act 1907(137) are "not ... in line with the provisions of the ILO Convention,(138) and yet has failed to repeal or amend those laws. There are no indications that this situation has changed since a Government's statement to that effect was issued in a Memorandum of Observations addressed to the United Nations in March 1996.(139)

Since 1967 the Government of Myanmar has indicated in its reports under article 22 of the ILO Constitution that those laws have fallen into disuse and are to be repealed. More lately, however, the Government has indicated that it relies on the laws as authorization at least for the practice of portering.(140) In so doing, it purports to rely on legislation which the ILO has repeatedly indicated does not comply with Myanmar's obligations under Convention No. 29,(141) and should be brought into line with Convention No. 29, as well as followed by action "to ensure that the formal repeal of the power to impose compulsory labour was followed up in actual practice and that those resorting to coercion in the recruitment of labour were punished.(142)

2. The Government of Myanmar has failed to meet
its duty under Convention No. 29 because it has
not fully complied with Article 25

The Government of Myanmar has failed to adequately criminalize and enforce penalties against forced labour practices, as required by the Convention. Article 25 requires that a State party make the exaction of forced or compulsory labour punishable as a criminal offence, that "really adequate penalties" be available, and that the State party make efforts to ensure that the laws are enforced. The Committee of Experts has made clear that compliance with Article 25 of Convention No. 29 requires that laws must be publicized,(143) as part of a systematic approach,(144) which has clear goals, a well-defined strategy, and takes place within a comprehensive legal framework.(145) Enforcement of the laws contemplated by Article 25 must cover all sectors of economic production and industrial activity.(146)

The secret directives issued by SLORC during 1995(147) concerning the use of compulsory labour do not amount to compliance with its Article 25 obligation. On their face the secret directives do not criminalize the exaction of portering or any other form of forced or compulsory labour, nor do they purport to repeal either the Villages Act 1908 or the Towns Act 1907. The secret directives merely seek to legitimize the practice of forced or compulsory labour by directing the terms under which it can be imposed. None of those terms satisfy an exception found in the Convention, Article 2.(148) Directive No. 82(149) only covers irrigation and apparently only applies in the Yangon division. Finally, the secret directives fail to specify any penalty for non-compliance with their terms and, in any event, purport to be secret; so that they are unlikely to be known to the people they are apparently intended to protect.

Section 347 of the Penal Code, which appears to be repealed, does not amount to compliance with Article 25 of Convention No. 29 because it expressly limits the offence that it creates to the unlawful exaction of forced labour. Accordingly, action taken under the Villages Act 1908 and the Towns Act 1907 and, arguably, under the recent secret directives or other such orders, would fall outside the scope of the section.

C. No permissible exception under Article 2 applies

None of the forced labour practices in Myanmar qualifies as an exception from the Convention's general prohibition on the use of forced or compulsory labour under Article 2. That Article sets forth five narrow exceptions, discussed in turn below: (a) compulsory military service; (b) normal civic obligations; (c) labour as punishment for duly convicted prisoners; (d) circumstances of emergency threatening the population; and (e) minor communal service. In addition, the Government has sought to exempt its practices because its forced labourers are, or are entitled to be, paid. However, under Article 2(2) whether a forced labourer is paid makes no difference to the determination of whether the conduct qualifies under one of the exceptions.(150)

1. The forced labour practices do not constitute work
or service "exacted in virtue of compulsory
military service laws for work of a purely
military character" under Article 2(2)(a)

The exception found in Article 2(2)(a) for "work of a purely military character" is not met by Myanmar's practice of forced labour. The Government of Myanmar has consistently asserted that recruitment into the military is on a purely voluntary basis.(151) Accordingly, it seems unlikely that there are "compulsory military service laws" within the meaning of this article of Convention No. 29, and thus "any work or service ... of a purely military character" by non-volunteers falls outside the exception. Civilians forced to work as porters who perform military tasks pursuant to the Villages Act 1908 and the Towns Act 1907, or under threat or use of force are ipso facto non-volunteers.(152)

2. Forced and compulsory labour in Myanmar is not part
of the normal civic obligations of the citizenry, within
the meaning of Article2(2)(b) of the Convention

Forced labour in Myanmar is not contemplated by the exception found in Article 2(2)(b) for "normal civic obligations". That exception contemplates such matters as compulsory jury service, the duty to assist a person in danger, and the duty to assist in the enforcement of law and order.(153) The nature and scope of forced and compulsory labour in Myanmar are in no way analogous to these exceptions, due to the personal effort, danger, harm and inconvenience the practice of forced labour in Myanmar requires.(154)

3. The labour exacted from prisoners does not
meet the strict requirements of Article 2(2)(c)

The forced labour of prisoners in Myanmar does not qualify under the narrow requirements of Article 2(2)(c). That Article requires that work exacted from prisoners as part of their punishment cannot be made available to private individuals except at the prisoner's free choice.(155) The Article further requires that the work be exacted "as a consequence of a conviction in a court of law" and "aims at ensuring that penal labour will not be imposed unless the guarantees laid down in the general principles of law recognized by the community of nations are observed, such as the presumption of innocence, equality before the law, regularity and impartiality of proceedings, independence and impartiality of courts, guarantees necessary for defence, clear definition of the offence and non-retroactivity of penal law".(156)

Documented reports demonstrate that the process of criminal convictions in Myanmar falls far short of process standards, both in military tribunals and in "civilian" courts established under SLORC administration.(157) In many cases, convictions am entered after summary trials or trials that fail to meet internationally recognized minimum standards of due process, including failure to observe the presumption of innocence, the defendant's right to counsel and other guarantees necessary for an adequate defence.(158) In some cases, conviction is entered without trial.(159) Persons convicted either by military tribunals, or by civilian courts cannot be considered to have been "convicted in a court of law" within the meaning of Article 2(2)(c), and any exaction of forced labour from them does not meet the requirements of that exception.

Furthermore, there is no evidence that any prisoner working in a labour camp in Myanmar is offered the choice whether to work, irrespective of the entity for which the work is being performed. Moreover, work on infrastructure projects related to private investment, such as the Yadana pipeline, does not qualify as an exception under these circumstances.

4. No emergency within the meaning of Article 2(2)(d)
exists to permit the forced and compulsory labour
that is currently being performed in Myanmar

The circumstances under which forced labour is practised in Myanmar fail to meet the type of exception contemplated by Article 2(2)(d). In that Article the concept of emergency requires "a sudden, unforeseen happening calling for instant countermeasures",(160) "that endangers the existence or the well-being of the whole or part of the population". No emergency exists or has existed in Myanmar that qualifies under Article 2(2)(d). The nature of the armed insurgencies were not "sudden" or "unforeseen" but rather the result of a protracted civil war of more than 40 years. The insurgencies of themselves did not result from endangerment of the population itself, but rather threatened the political control of the junta in the areas of conflict.(161)

Even if it were considered that the nature of the armed conflicts in outlying areas came within the meaning of Article 2(2)(d), the forced and compulsory labour that is being and has been performed in Myanmar is not exacted in accordance with the conditions required by that Article. The Article requires that the labour be "limited to what is strictly required" by the circumstances and to the duration of the emergency.(162) To the contrary, the widespread and systematic forced or compulsory labour in Myanmar is out of proportion to the insurgencies, and has lasted for decades. Moreover, forced labour in Myanmar goes far beyond what is strictly required by the exigencies of the situation. For example, infrastructure and tourist development bear no relation to any state of emergency caused by the armed insurgencies, and sexual services exacted by way of rape bear no relation to justified response to war.

5. Forced or compulsory labour in Myanmar goes far
beyond the concept of "minor communal service"
in Article 2(2)(e)

Forced and compulsory labour in Myanmar does not meet the requirements of Article 2(2)(e). As the Article provides, minor communal services must be "truly minor", such as maintenance work, or the construction of schools; performed for the benefit of the direct community of people who perform the work, not some wider group; and performed following consultation of the community or its representatives concerning the work to be performed.(163) In Myanmar, in contrast, the work is commonly extensive and significant in scope, not minor. It involves construction of roads, embankments and dams, and continues for days and sometimes weeks at a time. Forced labour is commonly performed for groups other than the citizenry, such as the military, or private interests. Where the labour is performed for general public benefit, as in infrastructure development, the benefits to the local community are diffuse and speculative at best, because the effect inures to communities far beyond those by whom the work is performed.(164) Indeed, the Committee of Experts refused under certain circumstances to accept that construction of projects of such scale and significance as railways meets the requirements of this Article.(165) Members of the community and their representatives are not consulted concerning the work to be performed. On the contrary, the evidence shows that where community representatives are involved, village headmen are ordered to present community members for work, and that commonly people are literally forced to work, being captured and seized from their community and made to labour.

D. A transitional period does not apply in this case and,
even if a transitional period applied, the Government
of Myanmar has failed to demonstrate compliance
with the guarantees that govern such a period

1. The ILO noted that no transitional period applies
to exempt the Government of Myanmar from its
obligation under Convention No. 29 to suppress
forced labour in all its forms

The Article 24 Committee determined that there was no question of a transitional period in this case.(166) While the Commission of Inquiry will be at liberty to make its own findings of fact and law de novo, the conclusions of the Article 24 Committee should be given considerable weight, and followed.(167)

2. A transitional period does not apply in the case
of Myanmar as a matter of fact or law

The 40 years since Myanmar ratified Convention No. 29 in 1955(168) constitutes more than ample time to make any required alterations to its laws and practices during any necessary period of transition. The brevity of the transitional period contemplated by the Convention is indicated by the requirements that certain forms of forced labour be immediately suppressed, the strict conditions and limitations which apply to any forced labour exacted during the transitional period; and the provision in Convention No. 29 itself(169) for two reviews of its operation, after five and ten years from its coming into force, with a view to the suppression of forced labour in all its forms, and without a further transitional period.

The concept of the transitional period, and the guarantees provided for concerning the conditions for the continued use of forced and compulsory labour during that period(170) "were aimed essentially at certain colonial practices".(171) By 1968 "relatively few of the countries bound by the Convention [were] still in a position to avail themselves of the transitional arrangements ..."(172) and by 1979 the transitional provisions were "hardly ever invoked ... as a justification for retaining forced or compulsory labour."(173) The Villages Act 1908 and the Towns Act 1907 are colonial laws never abolished after independence in Burma. The jurisprudence and General Surveys of the Committee of Experts support the conclusion that the laws do not conform to the understanding and interpretation of Convention No. 29 by the majority of States parties to it.

3. Myanmar is bound by its declaration
that no transitional period applies

The Government of Myanmar took the position before the Article 24 Committee that the transitional period did not apply.(174) That position can be considered as a declaration that gives rise to an obligation binding on it. In the Nuclear tests cases, the International Court of Justice held that a declaration concerning a legal or actual situation, made by way of a unilateral act of a State, may give rise to obligations which are binding on that State, and owed by it to the international community erga omnes, without the need for any acceptance of the act by any other State.(175) Whether or not an act has this effect depends upon the circumstances in which it occurs, and the intention of the maker of the statement. In the case before the International Court of Justice, the unilateral declaration by France that it would not conduct any more atmospheric tests, made in the vicinity of the International Court of Justice, and in litigious circomstances, gave rise to an obligation binding it to abide by that declaration: "It was bound to assume that other States might take note of these statements and rely on their being effective."(176) In assessing the intention of the State making the declaration, a restrictive interpretation is called for where the content of the declaration would limit the State's future freedom of action.(177) Further, it is more likely that a State intended to be bound by the declaration in circumstances where it could not bind itself by the ordinary means of formal agreement.(178)

In this case it can be argued that the Government of Myanmar is bound by its unilateral acts of confirmation of compliance with Convention No. 29, of which other States took note. The Government did not invoke the transitional period as justification for the practice of forced portering, the subject of the representation by the ICFTU under article 24 of the ILO Constitution. Accordingly the Article 24 Committee(179) determined that there is no longer any question of a transitional period for Myanmar. This is in accordance with the position taken by the Government of Myanmar in its reports to the Committee of Experts under article 22 of the ILO Constitution concerning its compliance with its obligations under Convention No. 29 since 1967.(180) These actions by the Government of Myanmar were unilateral acts, having the effect of limiting its future freedom under Convention No. 29, and concerned a matter not amenable to formal agreement with any other State or group of States. Accordingly Myannar, having made a declaration to the international community, through the avenue of the Article 24 Committee, may now be held to the content of that declaration by the international community through the ILO.

4. In any event, none of the conditions and
guarantees required during the transitional
period is satisfied in Myanmar

The facts in this case demonstrate that, even if there were a transitional period in effect, the forced labour practices of Myanmar do not meet the conditions and guarantees required by the Convention. Article 1(2) requires that, during the transitional period, recourse may be had to compulsory labour for public purposes only, as an exceptional measure, and subject to the conditions and guarantees subsequently provided.(181) The practice of forced labour in Myanmar breaches key components of Article 1(2): evidence demonstrates that forced labour is used for the benefit of private associations, individuals and companies;(182) forced labour is used widely and systematically, and is in fact a budgeted part of the Government's development programme; the use of forced labour is not limited in any way to use as an exceptional measure.(183) Furthermore, none of the conditions and guarantees subsequently set forth is met.

Articles 8, 23 and 24.(184) As a military administration, SLORC and its local counterpart authorities do not meet the required description of a highest "civil" authority. To the extent that any regulations have been promulgated concerning the use of forced labour, those available publicly, such as the Villages Act, the Towns Act and uncovered "secret" directives, fail to provide for complaints to be submitted by persons from whom forced labour is exacted and for complaints to be considered.(185) Furthermore, there is no evidence of any attempt to enforce standards regulating the conditions under which forced labour is exacted.

Article 9.(186) No available evidence suggests that any authority, civil or otherwise, has made or is directed to make the determinations contemplated by the preambular parts of the Article prior to imposition of forced labour. In fact, the evidence demonstrates that forced labour is imposed under opposite circumstances. The work performed is not for the "important direct interest for the community called upon to do [the] work". Rather the forced labour exacted from people is for broad public benefit (roads, railways); for purely personal gratification (sexual services); for private company interests (gas exploration and exploitation ventures, tourist projects); and for the military for its own counter-insurgency or private commercial purposes.(187) None of the forms of labour exacted from the people of Myanmar is of imminent necessity.(188) There is no evidence of the SLORC or the Tatmadaw, as the case may be, ever having sought voluntary labour for any of the forms of forced labour, and there is little or no evidence of payment. The work and services exacted lay an unjustly heavy burden on the people of Myanmar from whom they are exacted. Fees are exacted from the poor to avoid forced labour; farmers and fishermen are forced to leave their occupations for long periods of time, disrupting planting and harvesting cycles; and family life is disrupted while members go away to perform work. Children are deprived of their education and childhood. In cases of rape, the physical and psychological damage, as well as social harm, are excruciating.(189)

Article 10.(190) Because the alternative to providing forced labour is payment of fees, it can be argued that people's labour is being exacted from them as a tax, in breach of Article 10(2). Because the determinations required by Articles 10(2)(a)-(c) are identical to Articles 9(a)-(c), the arguments made concerning those Articles are incorporated here. Many of the workers are forced to travel long distances to labour camps, to go portering. No respect for the exigencies of religion, social life or agriculture is observed.

Article 11.(191) The evidence demonstrates that Article 11(1) is breached regularly.(192) Many children, women and elderly work on forced labour projects and as porters. The evidence indicates that there is no prior physical assessment; no exemptions; and no consideration to the maintenance of the number of able-bodied adult males in any community, or to conjugal or family ties.

Article 12.(193) The evidence suggests that, rather than any attempt to regulate the length of time that persons are required to perform forced labour, the opposite occurs.(194) According to reliable reports, people in some areas are required to perform forced labour two weeks in every month. Many people are repeatedly required to serve as forced labourers, even where they have paid porter fees and met other demands. There is certainly no certification of service given out, or any attempt made to see that the burden of forced labour is shared around.

Articles 13 and 14.(195) The evidence demonstrates that Articles 13 and 14 are breached regularly in the practice of forced labour in Myanmar. The hours of work required of those performing forced labour are excessive, there is little or no payment, and there are no or insufficient rest periods and breaks.

Article 15.(196) While the Government of Myanmar has stated from time to time that the workers' compensation laws are applicable to "people's contribution" labour,(197) reliable and independently corroborated accounts, together with forensic and other physical evidence, attests that people are left to die from injuries suffered at work, unattended when disease occurs, and routinely subject to beatings, summary execution and rape.(198)

Article 16.(199) Contrary to Article 16, little or no respect is paid to using forced labour in the same location as that from which the people come, let alone attention to gradual habituation to new areas.

Article 17.(200) As discussed supra, there is no evidence of prior medical assessment or provision of appropriate medical care during work assignments; in most cases workers travel at their own expense and are left to suffer the consequences of any injuries they suffer wherever they are working; no efforts are made to ensure the subsistence of other members of workers' families.

Article 18.(201) The practice of forced portering in Myanmar is one of the most notorious breaches of its obligations under Convention No. 29. Portering is not conducted in accordance with any regard for the health and well-being of the people who perform the work, or of the communities from which the porters are taken, nor are any of the safeguards required by Article 18 routinely observed.(202)

V. CONCLUSIONS

Based on the above statement of facts and discussion of law, the complainants consider that:

1. Ample evidence demonstrates that forced labour in Myanmar is a widespread practice, provided for by law, and carried on without any prospect of prevention or punishment of those who exact forced labour from the citizens of Myanmar. The Government of Myanmar is therefore in flagrant breach of the Convention on Forced Labour, 1930 (ILO Convention No. 29).

2. Previous, repeated findings of the different organs of the ILO supervisory mechanisms have not brought progress in observance of the Convention. The question of the Government of Myanmar's non-compliance with its obligations under Convention No. 29 has been exhaustively considered by the Committee of Experts, the Conference Committee, and the Committee established to examine the Representation under article 24 of the ILO Constitution. Despite the views expressed by those bodies, the Government of Myanmar continues to blur the distinction between forced and voluntary labour, and persistently fails to eliminate the serious discrepancies identified in its law and practice.

3. In view of the above, complainants consider that the establishment of a Commission of Inquiry is appropriate and merited.

4. The complainants consider that the security of witnesses testifying before the Commission of Inquiry is of paramount importance. It should be ensured that any witnesses, whether testifying on their own initiative or upon request of any party, are protected from and held safe against any harm, reprisal or discrimination on the basis of their statements to the Commission of Inquiry. The same safeguards should be required for witnesses' families and next of kin.

5. The complainants would hope that, in any hearing or on-site visits, the Commission of Inquiry would be granted unhindered and private access to witnesses, would allow for anonymity of witnesses where necessary, and would be in a position to guarantee privacy and confidentiality of all hearings of and communications with witnesses. For any activities of the Commission of Inquiry within Myanmar itself, safeguards should include obtaining and monitoring commitments by the Government of Myanmar to ensure that credible assurances are given by high and local commander levels that no retaliatory measures will be taken against witnesses.

6. The complainants request that the Commission of Inquiry give due attention to the need for the Government to take immediate remedial measures and hence:

1.  International Labour Conference, 82nd Session, Report III (Part 5), List of ratifications by Convention and by country (Geneva, 1995), p. 46.

2.  Myanmar's compliance with its obligations under the ILO Convention concerning Freedom of Association and the Protection of the Right to Organise, 1948 (No. 87) has also been the subject of comment by the Committee of Experts and the Conference Committee. See, e.g., International Labour Conference, 83rd Session, Provisional Record, Report of the Committee on the Application of Standards (Geneva, 1996), paras. 166, 169.

3.  International Labour Conference, 48th Session, Report III (Part 1), Summary of reports on ratified Conventions (Geneva, 1964), p. 71.

4.  International Labour Conference, 52nd Session, Report III (Part 1), Summary of reports on ratified Conventions (Geneva, 1968), p. 57.

5.  International Labour Conference, 78th Session, Report III (Part 4A), Report of the Committee of Experts (Geneva, 1991), p. 99 (the Committee of Experts indicated its hope that the Government of Myanmar would respond in detail to the matters raised); International Labour Conference, 79th Session. Report III (Part 4A), Report of the Committee or Experts (Geneva, 1992), p. 127 (the Committee of Experts reiterated its comments of 1991, in view of the fact that no report had been received from the Government).

6.  For a discussion of the article 24 proceedings, see notes 16, 26 infra and accompanying text.

7.  Report of the Special Rapporteur on the situation of human rights in Myanmar, 1993, UN doc. E/CN.4/1993/37 (17 Feb. 1993) ("Report of the Special Rapporteur, 1993"); International Labour Conference, 80th Session, Report III (Part 4A), Report of the Committee of Experts (Geneva, 1993) ("RCE, 1993"), pp. 114, 115.

8.  This Article exempts from the general prohibition on forced labour work which is performed as part of "minor communal service". See notes 163-165 infra and accompanying text.

9.  International Labour Conference, 82nd Session, Report III (Part 4A), Report of the Committee of Experts (Geneva, 1995) ("RCE, 1995"), pp. 107-110.

10.  The Government's report merely referred to Article 2(2)(b) (exemption for forced labour as part of one's normal civic obligations -- see notes 153, 154 infra and accompanying text) and 2(2)(d) (exemption for forced labour exacted in time of emergency -- see notes 160-162 infra and accompanying text) and asserted that the term "forced labour" was not applicable to work performed pursuant to either the Villages Act 1908 or the Towns Act 1907, which were both outdated and subject to review in any event.

11.  International Labour Conference, 83rd Session, Report III (Part 4A), Report of the Committee of Experts (Geneva, 1996) ("RCE, 1996"), p. 89. See generally idem, pp. 87-89.

12.  International Labour Conference, 79th Session, Provisional Record, Report of the Committee on the Application of Standards (Geneva, 1992), pp. 27/37-27/38.

13.  International Labour Conference, 82nd Session, Provisional Record, Report of the Committee on the Application of Standards (Geneva, 1995), para. 139, ("RCE, 1996"), note 11 supra at 88.

14.  International Labour Conference, 83rd Session, Provisional Record, Report of the Committee on the Application of Standards (Geneva, 1996), para. 164.

15.  idem, para. 169.

16.  Representation under article 24 of the ILO Constitution against the Government of Myanmar (formerly Burma), for its violations of the Convention concerning Forced Labour, 1930 (Convention No. 29 of the International Labour Organization), ratified by Burma in 1955, submitted by the International Confederation of Free Trade Unions, on 25 January 1993 to the Director-General of the International Labour Office, on file with the ICFTU ("Article 24 Representation").

17.  See generally: ILO, Governing Body, Report of the Director-General, Second Supplementary Report, Report of the Committee set up to consider the representation made by the International Confederation of Free Trade Unions under article 24 of the ILO Constitution alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29) (Geneva, Nov. 1994), ILO doc. GB.261/13/7 ("Article 24 Report").

18.  ILO, Governing Body, minutes of the 261st Session, ILO doc. GB.261/PV(Rev.) (Geneva, Nov. 1994), para. 61; RCE, 1996, note 11 supra at 88.

19.  Article 24 Representation, note 16 supra, note at 6.

20.  Article 24 Report, note 17 supra at paras. 12, 14-19.

21.  idem, para. 42 (communications in May, and in Oct. 1993).

22.  idem, paras. 20, 21, 25-40, and 48 respectively.

23.  idem, para. 48.

24.  idem, para. 49.

25.  idem, para. 50. Being satisfied, on this basis, that there was no question of a transitional period in the case of Myanmar, the Article 24 Committee did not examine the question whether forced portering was conducted in accordance with the guarantees provided in Articles 8-16, 18, 23 and 24 of Convention No. 29. idem, para. 51.

26.  idem, para. 52.

27.  Anti-Slavery International: Ethnic groups in Burma (London, 1994) ("Ethnic groups"), p. 91.

28.  Australian Council for Overseas Aid: Slave labour in Burma: An examination of the SLORC's forced labour policies (May 1996) ("ACFOA"), pp. 28-29; Ethnic groups, note 27 supra at 91.

29.  See, e.g., comments of the Government of Myanmar to the Article 24 Committee, notes 21, 22 supra and accompanying text at paras. 20-41.

30.  Ethnic groups, note 27 supra at 89.

31.  idem.

32.  For a general account of the practice of forced portering, see, e.g., Amnesty International: Myanmar: The climate of fear continues -- Members of ethnic minorities and political prisoners still targeted, AI: ASA 16/06/93 (Oct., 1993) ("Climate of fear"), pp. 13-21; Human Rights Watch/Asia: Abuses linked to the fall of Manerplaw, Vol. 7, No. 5 (Mar. 1995) ("Manerplaw"), p. 12. "Detailed reports, photographs, video recordings and a variety of physical evidence seen by the Special Rapporteur indicate that the practices of forced labour [and] forced portering ... are still widespread in Myanmar ...". Report of the Special Rapporteur on the situation of human rights in Myanmar, 1996, UN doc. E/CN.4/1996/65 (5 Feb. 1996) ("Report of the Special Rapporteur, 1996"), para. 173.

33.  For a discussion of the law, see notes 105-110 infra and accompanying text.

34.  Report of the Special Rapporteur, 1996, note 32 supra at para. 173.

35.  Amnesty International: Myanmar: No place to hide; Killings. abductions against ethnic Karen villagers and refugees, AI: ASA 16/13/95 (June 1995) ("No place to hide"), p. 25.

36.  See notes 21, 22 supra and accompanying text (comments of the Government of Myanmar to the Article 24 Committee).

37.  Ethnic groups, note 27 supra at III (mothers and pregnant women have been forced to work as porters); and Images Asia: No childhood at all: A report on child soldiers in Burma (May 1996), p. 6 (children have worked as porters).

38.  Amnesty International: Portering and forced labour: Amnesty International's concerns, AI: ASA 16/42/96 (Sep. 1996), pp. 2, 3; Amnesty International: Conditions in prisons and labour camps, AI: ASA 16/22/95 (Sep. 1995) ("Conditions in prisons"), pp. 1, 6.

39.  Conditions in prisons, note 38 supra at 1, 6.

40.  See, e.g., Amnesty International: Myanmar: Human rights after seven years of military rule, AI: ASA 16/23/95 (Oct. 1995) ("Seven years"), pp. 24-25; No place to hide, note 35 supra p. 27; Amnesty International: Human rights still denied, AI: ASA 16/18/94 (Nov. 1994) ("Denied"), pp. 14-21.

41.  See notes 50-53 infra and accompanying text..

42.  See, e.g., Asia Watch: Burma: Rape, forced labour and religious persecution in North Arakan State (May 1992) ("Arakan State"), p. 13.

43.  Report of the Special Rapporteur on the situation of human rights in Myanmar, 1995, UN doc. E/CN.4/1995/65 (12 Jan. 1995) ("Report of the Special Rapporteur, 1995"); Report of the Special Rapporteur on the situation of human rights in Myanmar, 1994, UN doc. E/CN.4/1994/57 (16 Feb. 1994) ("Report of the Special Rapporteur, 1994"), para. 49; see also the Report of the Special Rapporteur, 1996, note 32 supra at paras. 114, 115; Report of the Special Rapporteur, 1993, note 7 supra at paras. 79-84, 101-104, 135-138, 222, 228, 229, 231-233.

44.  Report of the Special Rapporteur on torture and other forms of cruel, inhuman or degrading treatment of punishment, 1994, UN doc. E/CN.4/1994/31 (6 Jan. 1994), para. 401.

45.  See, e.g., Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, 1994, UN doc. E/CN.4/1994/7 (7 Dec. 1993), para. 448.

46.  See, e.g., Climate of fear, note 32 supra at 21.

47.  Report of the Special Rapporteur on torture, note 41 supra.

48.  Human Rights Watch/Asia: Entrenchment or reform? Human rights developments and the need for continued pressure, Vol. 7. No. 10 (July 1995) ("Entrenchment"), p. 21. The following account by a former porter of the death of another porter, a neighbour from his village, is illustrative of the treatment meted out to porters by SLORC troops: "I heard Tun Shwe say to the soldier behind him, a private from Battalion 531, 'Sir, don't kill me, I will try to do my best to reach your destination. Now I cannot carry, cannot walk, but I will try. Don't punish me, don't kill me.' After Tun Shwe exclaimed 'I cannot carry, cannot walk' the soldier shot him dead, one bullet from a G-4 at a distance of about four metres, in his back so his insides came out. After the shooting nothing happened, no-one could say anything. The soldiers just said to the other porters 'complete your duty, go on, go on' as if he was driving cows." ("No place to hide"), note 35 supra at 29.

49.  Climate of fear, note 32 supra at 20-21 (16 and 17-year-old girls of ethnic groups taken as porters and raped.) One human rights group which interviewed a number of refugees in a camp in Thailand reported that women who had worked as porters commonly alleged that they had been raped: "Four victims, aged 17 to 42, said they had been seized in or near their homes in Kammamaung township. They said that troops had raped them during a 22-day tour of compulsory labour duties carrying artillery shells to the front for the Tatmadaw assault on Manerplaw." ("Ethnic groups"), note 27 supra at 113.

50.  Ethnic groups, note 27 supra at 89.

51.  Article 19: Burma: Beyond the law, (Aug. 1996) ("Beyond the law"), p. 50. For example, as part of SLORC's offensive against the Karen National Union and the Mong Tai Army between November 1994 and June 1995, thousands of porters were reportedly taken to the frontline, and hundreds died ("Entrenchment"), note 48 supra at 21.

52.  For example, an elderly Karen headman from Thaton district lost a leg after SLORC troops tied him to a rope and forced him to try and find a path through a minefield ("Ethnic groups"), note 27 supra at 29-30.

53.  In a notorious case in 1991, two teenage girls from Papun High School, in the Karen State, Naw Aye Hia and Ne Law Win, were reportedly killed when they stepped on mines after being press-ganged as porters ("Ethnic groups"), note 27 supra at 117.

54.  Report of the Special Rapporteur, 1996, note 32 supra at paras. 141-144; "Detailed reports, photographs, video recordings and a variety of physical evidence seen by the Special Rapporteur indicate that the practices of forced labour ... seem to be occurring in the context of development programmes ... Many of the victims of such acts belong to ethnic national populations. In particular, they are peasants, women, daily wage-earners and other peaceful civilians ...". idem, para. 173.

55.  RCE, 1995, note 9 supra at para. 2, p. 109 (the Government of Myanmar reporting "799,447 working people" as contributing "voluntary labour" on the Aungbon-Loikow railway); New light of Myanmar, 15 Dec. 1993, as cited in Entrenchment, note 48 supra, p. 15 (reporting 921,753 people contributing labour to build the Pokokku-Manywa railway); Beyond the law, note 51 supra at 49 (hundreds of thousands affected); Entrenchment, note 48 supra at 14 (estimating that since 1992 at least 2 million people have been forced to work without pay on construction of roads, railways and bridges across the country); Ethnic groups, note 27 supra at 84 (citing the Working People's Daily of 8 May 1992 reporting that over 300,000 people had contributed "voluntary labour" on the Aungbon-Loikow railway).

56.  For further discussion of forced labour and tourism, see notes 102, 103 infra and accompanying text.

57.  In 1995, the Government of Myanmar admitted to "contribution of labour" by the people on seven new railroad projects. Letter dated 18 March 1996 from the Permanent Representative of the Union of Myanmar to the United Nations Office at Geneva, Memorandum of Observations and comments concerning doc. E/CN.4/1996/65 of 5 Feb. 1996 pertaining to the Union of Myanmar, UN doc. E/CN.4/1996/139 (21 Mar. 1996) ("Memorandum of Observations"), p. 21; Ethnic groups, note 27 supra at 84. Examples of development projects involving forced labour include a railway from Ye to Tavoy, in Tenasserim division, widely reported to require tens of thousands of civilians in forced labour; Seven years, note 40 supra at 25-26. Article 19: Paradise lost? The suppression of environmental rights and freedom of expression in Burma (London, Sep. 1994) ("Paradise lost"), p. 6; and see discussion of gas and oil exploration notes 90-97 infra and accompanying text; road construction in Arakan State, a particularly undeveloped area that has seen the flight and return of 250,000 Rohingya Muslims in recent years; Climate of fear, note 32 supra; the local Rohingya population are regularly and reportedly disproportionately pressed into service (Beyond the law, note 51 supra at 49) as development leads to the need for greater control by SLORC; and a road from Putao to Sumprabum in Kachin State, on which 3,000 people were made to work in late 1994, Entrenchment, note 48 supra at 15. For maps depicting different construction projects in Myanmar which are being carried on using forced labour, see ACFOA, note 28 supra, Appendices A and B.

58.  See, e.g., "Burma using forced labour on tourist projects", New York Times, 17 July 1994. Examples of these projects include dredging the moat of the Golden Palace at Mandalay; persistent reports suggest that thousands of civilians have been ordered by SLORC to clear the moat by hand: e.g., The Bangkok Post, 22 Jan. 1995); airport construction, which is frequently observed to be performed by forced labour; as many as 30,000 were reported to have laboured at Bassein Airport without pay (The Guardian, London, 12 July 1994); and a dam at Inlay Lake, which is related to a proposed tourist development at Moebye on the Biluchaung River; reportedly villagers and civilians have been ordered to clear the lake by hand.

59.  In 1996 the Government of Myanmar admitted that prisoners are "contributing labour at project sites" and, in a reference reflecting the scale of the practice, claimed that "over 23,000 ... have had their sentences reduced by as much as one-third" as a result: Memorandum of Observations, note 37 supra at 21.

60.  Conditions in prisons and labour camps, note 38 supra. For example, a 51-year old monk from Mandalay reportedly died from malnutrition and malaria on 18 Nov. 1994 after working in a malarial area. He had been arrested for his participation in the 1988-89 pro-democracy movement and sentenced to five years' hard labour in the Kachin State. idem, at 3.

61.  United States Department of State, Foreign economic trends report: Burma (June 1996) ("Economic trends"), p. 88. ("The available evidence strongly suggests large increases in the [Government's] use of uncompensated labour in regional and national construction projects, as well as in local rural development projects.")

62.  Ethnic groups, note 27 supra at 86.

63.  Entrenchment, note 48 supra at 15.

64.  See, e.g., Human Rights Watch/Asia: Burma: The Rohingya Muslims, ending a cycle of exodus? Vol. 8. No. 9(C) (Sep. 1996), p. 30.

65.  See, e.g., Beyond the law, note 51 supra at 50; Climate of fear, note 32 supra at 13.

66.  See, e.g., Paradise lost, note 57 supra at 20.

67.  See, e.g., Entrenchment, note 68 supra at 15 (a large number of people reportedly died of malaria during forced labour on a road construction project at Patao).

68.  In an interview published in the Bangkok Post of 18 October 1992, Lieutenant-Colonel Than Han of the Border Areas Development Programme explained that hill tribe people suffer from the climatic change when they come down to work on the plains: "They sweat a lot, they lose weight and they have some health problems". Ethnic groups, note 27 supra at 88.

69.  The UN Special Rapporteur on extrajudicial, summary or arbitrary executions has expressed concern at "persistent reports of arbitrary and excessive use of force by members of the security forces, who seem to enjoy virtual impunity", note 45 supra.

70.  Report of the Special Rapporteur, 1995, note 43 supra, para. 230.

71.  "The old and infirm are particularly vulnerable and have been beaten when they take rests or are thought to be working too slowly." Entrenchment, note 48 supra at 15.

72.  "In the northwest, a ... visitor to Chin State reported that a woman was killed while working on the Pakoku-Kalemyo railway line after she had stopped working twice to feed her young baby. The woman had been forced to take her baby with her to the site as all her relatives were also working on the railway." idem.

73.  A Karen Christian woman from Kyaukkyi township who fled to Thailand reported that she had been raped at knife-point by an army sergeant who had been supervising her work detail while she dug ditches. See Ethnic groups, note 27 supra at 113.

74.  idem, at 84.

75.  Rohingyas, note 64 supra at 30.

76.  idem.

77.  ACFOA, note 28 supra at 9.

78.  Cf. Article 19: Fatal silence? Freedom of expression and the right to health in Burma ("Health") (London, July 1996), p. 107 (UNICEF estimates that Myanmar's maternal mortality rate is 140 per 100,000, attributable to poor access to information about reproductive health and the illegality of abortions; 50 per cent of maternal deaths are estimated to be due to the performance of illegal abortions).

79.  idem, at 103.

80.  See, e.g., Climate of fear, note 32 supra at 20.

81.  Paradise lost, note 57 supra at 6.

82.  See, e.g., Seven years, note 40 supra at 26, 27; Human rights still denied, note 40 supra at 17, 18; Rohingyas, note 64 supra at 32.

83.  See, e.g., Rohingyas, note 64 supra at 29 (1,200 miles of roads to be built in Arakan State to facilitate military movement, and tourist development).

84.  See also RCE, 1995, note 9 supra and accompanying text (Committee of Experts' opinion that roads and railway projects do not constitute "minor communal" projects for the purposes of Convention No. 29).

85.  Economic trends, note 61 supra at 87.

86.  The percentage is most likely understated, since the Government's figures appear to value "people's contributions at the prevailing government daily wage rate. If the figures are adjusted to the higher, prevailing market rate, the value of people's contributions amounts to nearly 75 per cent in the years in question; idem.

87.  SLORC's allocation or foreign exchange to the armed forces is reflected in the US$1.2 billion contract for arms purchases between Myanmar and China reported in 1994; see, e.g., Paradise lost?, note 57 supra at 6; Economic trends, note 61 supra at 22 (China is one of the main suppliers of military acquisitions; defence spending on imports rose from US$20 million in 1988 and 1989 to US$390 million in 1991).

88.  See, e.g., Ethnic groups, note 27 supra at 84; EarthRights International and Southeast Asian Information Network: Total denial (July 1996) ("Total denial"), p. 33 (construction of military barracks on Heinze Island, associated with the building of the Yadana pipeline; see notes 90-96 infra and accompanying text); the people of Arakan are also forced to help with the construction of barracks for the NaSaKa, a border policing unit; Rohingyas, note 64 supra at 29.

89.  See, e.g., idem, at 36 (construction of military barracks near the pipeline route); Manerplaw, note 32 supra at 12-14 (villagers reported they had been forced to dig latrines, cook, water gardens and cut bamboo for the military); Amnesty International: Myanmar: Human rights violations against Muslims in the Rakhine (Arakan) State, AI: ASA 16/06/92 (Oct. 1992) ("Human rights violations"), p. 6 (Muslims reported that they had been forced to build military camps, to construct or improve roads between camps, and to work within camps looking after livestock, digging bunkers, cleaning latrines, and washing soldiers' uniforms).

90.  See, e.g., Ethnic groups, note 27 supra at 89 (since 1992 over 30,000 people reportedly have been forced to work on the Ye-Tavoy railway).

91.  Paradise lost?, note 57 supra at 16-20. A pipeline is to be constructed from a point in the Andaman Sea past Heinze Island, then across approximately 65 miles of the Tenasserim division and into Thailand, where the gas will ultimately be consumed. See, e.g., Total denial, note 88 supra at 1.

92.  Work on the pipeline route has mainly consisted of clearing the jungle by hand. Related infrastructure work has included construction of barracks in the area to house SLORC battalions moved into the region to provide security for the pipeline. idem.

93.  See, e.g., John Doe I., etc. et. al. v. Unocal Corp. et. al., docket No. 96-6959 LGB (C.D. Cal.), complaint filed in US Federal Court, 3 Oct. 1996, paras. 37-182; National Coalition Government of the Union of Burma and the Federation of Trade Unions of Burma v. Unocal. Inc. (suits prepared in anticipation of showing proof on a preponderance of the evidence). See also letter from Beth Stephen, Center for Constitutional Rights, dated 21 March 1995 to Mr. Roger Beach, CEO, Unocal Corporation, p. 2.

94.  Memorandum of Observations, note 57 supra. at 20, 21 (there is no forced labour in Myanmar; the people contribute their labour voluntarily).

95.  See, e.g., Total denial, note 88 supra at 9.

96.  Paradise lost?, note 57 supra at 19; there has been "considerable disagreement" between the various groups reporting on alleged forced labour practices in the region, and the oil companies involved in the work, as to the relationship between the railway and the pipeline. At the very least, however, the completion of the railway will facilitate transport of SLORC troops and their supplies into the area, and the portion completed already has been used for this purpose; Total denial, note 88 supra at 14.

97.  Ethnic groups, note 27 supra at 88-89.

98.  See notes 56-58 supra and accompanying text.

99.  Memorandum of Observations, note 57 supra at 16; "More information construction of Yangon-Mandalay Union Highway", Myanmar News Agency, 23 Jan. 1996.

100.  Memorandum of Observations, note 57 supra at 16.

101.  idem, at 20 (section entitled "Traditional contribution of labour" referring to attaining merit through the practice of "contributions of labour"); used in reference to what the ILO has considered forced 1abour. Notes 12-26 supra and accompanying text.

102.  Paradise lost?, note 57 supra at 24. As of 15 July 1995, registered foreign investment in Myanmar's hotel and tourism sector rated second in worth only to the oil and gas sector; Jeremy Mark, "Western firms remain hesitant about investing in Burma in contrast to Asians' enthusiasm", Asian Wall Street Journal, week of 4 Sep. 1995, pp. 1, 8.

103.  See, e.g., Burma Action Group: Burma. The alternative guide (Jan. 1996), p. 21, referring to Appendices III and IV.

104.  N. Chan: "A culture of coercion", Burma Issues, Jan. 1995, pp. 2, 3.

105.  Cf. Villages Act 1908, s. 12 (chapeau) and Towns Act 1907, s. 9A, notes 106-110 infra and accompanying text. Complainants rely on an extremely reliable source and will provide copies of the said laws as soon as available.

106.  Villages Act 1908, printed in Burma Code, Vol. VI (1979) (in pertinent part) (emphasis supplied).

107.  Memorandum of Observations, note 57 supra at 22.

108.  See notes 12-26 supra and accompanying text.

109.  On 19 February 1992 the SLORC announced in the New light of Myanmar that a large number of laws were to be repealed, having been found to be "no longer in conformity with the changing circumstances, [or] not been in use for a very long time [or] laws for which there are no reasons for use in future ...". State Law and Order Restoration Council, Law No. 1/92, The Working People's Daily, 20 Feb. 1992, pp. 1, 7 and 8. A list of some 137 laws was appended. State Law and Order Restoration Council Law No 4/93 similarly announced the repeal of another 14 laws, The Working People's Daily, 1 Apr. 1993, pp. 1, 6. As of March 1996, the SLORC announced that 151 laws had been repealed, 35 "old" laws and 78 "subsidiary" laws were also said to have been repealed and replaced by new laws, Memorandum of observations, note 57 supra at 18.

110.  In 1996, the Government stated that it "had started the process of amending these two laws ...", Memorandum of Observations, note 57 supra at 22; this statement was further explained by a Government representative to the Conference Committee in June, who indicated that a board formed to monitor the progress of the review of the Villages Act 1908 and the Towns Act 1907 had met three times in the previous year, as a result of which the draft of a new unified law had been submitted to the Laws Scrutiny Central Body for approval, International Labour Conference, 83rd Session, Provisional Record (Geneva, 1996), p. 14/56, and see the discussion of the proceedings of the Conference Committee notes 13-15 supra and accompanying text. The content of the draft law was not revealed. Cf. the Government's statement made to the Committee of Experts in 1968, note 4 supra and accompanying text.

111.  The UN Special Rapporteur in Myanmar was provided with copies of certain secret directives concerning the practice of forced labour, during the course of his visit to Myanmar in 1995, Report of the Special Rapporteur, 1996, note 32 supra add. 2, 3.

112.  idem, at para. 141.

113.  Burma Code, Vol. VIII (1979) (in pertinent part) (emphasis supplied).

114.  International Labour Conference, Record of Proceedings, 14th Session (Geneva, 1930), p. 61, referred to in International Labour Conference, 65th Session, Report III (Part 4A), Report of the Committee of Experts, General Survey of the Reports relating to the Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1957 (No. 105), 1979 (Geneva, 1979) ("1979 General Survey"), para. 21, n. 3; and in International Labour Conference, 52nd Session, Report III (Part 4), Report of the Committee of Experts, General Survey on the Reports concerning the Forced Labour Convention 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105), 1968 (Geneva, 1968) ("1968 General Survey"), para. 27, n. 3.

115.  As provided for by Article 1(1) of the Convention. Further, "penalty" should be construed together with, and in light of the other limb of the definition of "forced or compulsory labour" that the person performing the work or services did not offer themselves voluntarily, cfr. Article 2(1) of the Convention.

116.  Villages Act 1908, s. 12, Towns Act 1907, s. 9A. The relevant provisions are set out in full, section III.C.1 supra. The Committee of Experts and the Conference Committee have both determined that the existence and the operation of these laws are inconsistent with Myanmar's obligations under Convention No. 29. Notes 5-15 supra and accompanying text.

117.  Cf. RCE, 1996, note 11 supra at 85 (case concerning Japan: the conditions in which Korean "comfort women" were forced to provide sexual services during World War II amounted to "sexual slavery" that would have been contemplated by Convention No. 29; the women would have been entitled to wages and other benefits of employment).

118.  See, e.g., "Child labour", ILO doc. GB.265/2 (Geneva, Mar. 1996), para. 32 (Convention No. 29 "enables the ILO to examine practices with regard to child labour which amount to forced labour within the meaning of the Convention"; this has been done for "some ten years").

119.  See the discussion in section IV. D.4 infra.

120.  For a discussion of the effect of payment on the exceptions of Article 2(2), see note 150 infra and accompanying text.

121.  US Committee for Refugees, USCR site visit to Bangladesh (20 June-1 July 1996) (Washington, D.C., 1996) (recent arrivals in Bangladesh from Arakan State report Rohingyas are disproportionately subject to forced labour and that forced labour periods extended to several weeks each month, reducing time available to farm); Beyond the law, note 51 supra at 46-49; Amnesty International: Myanmar: Human rights still denied, AI: ASA 16/8/94 (Nov. 1994), pp. 15-17.

122.  International Labour Conference, 83rd Session, Provisional Record, Report of the Committee on the Application of Standards (Geneva, 1996), pp. 14/56-14/58.

123.  See the discussion at notes 88, 89 supra and accompanying text.

124.  International Labour Conference, 83rd Session, Provisional Record, Report of the Committee on the Application of Standards (Geneva, 1996), pp. 14/56-14/58.

125.  Between 800,000 (statement of the Workers' delegation to the Conference Committee, 1996, idem, at 14/57) and 2 million (estimate of Human Rights Watch/Asia: Entrenchment, note 48 supra at 14) people have been used to date.

126.  RCE, 1993, note 7 supra, case of Myanmar, at para. 3; RCE, 1996, note 11 supra at para. 3; see also note 9 supra and accompanying text.

127.  Article 24 Report, note 17 supra at para. 52.

128.  See notes 11, 12 supra and accompanying text.

129.  See notes 85-87 supra and accompanying text.

130.  See notes 90-97 supra and accompanying text.

131.  See note 57 supra and accompanying text.

132.  See note 58 supra and accompanying text.

133.  See note 104 supra and accompanying text.

134.  Article 4(2).

135.  Article 4(1).

136.  The text of the secret directives is discussed at notes 111, 112 supra and accompanying text.

137.  See notes 105-110 supra and accompanying text.

138.  Memorandum of Observations, note 57 supra at 22.

139.  idem; for a discussion of the difficulty in researching the current law of Myanmar, see Beyond the law, note 51 supra at 3-4.

140.  See, e.g., Memorandum of Observations, note 57 supra at 20-23; submissions of the Government of Myanmar to the Article 24 Committee, note 17 supra at para. 24; note verbale dated 4 Nov. 1994 of the Permanent Mission of the Union of Myanmar to the United Nations Office at Geneva, containing the response to the Report of the Special Rapporteur, 1994 (note 43 supra), reproduced in the Interim Report of the Special Rapporteur in UN doc. A/49/594/Add.1 (28 Oct. 1994), para. 3 (paras. 24-28 of the note verbale reiterate the position that recruitment of porters is in accordance with the law, that they are well treated and that there are regulations to this effect).

141.  See the discussion in section III supra.

142.  See generally ILO, Governing Body, minutes of the 261st Session, ILO doc. GB.261/PV(Rev.) (Geneva, Nov. 1994), para. 61.

143.  International Labour Conference, 75th Session, Report III (Part 4A), Report of the Committee of Experts (Geneva, 1988) ("RCE, 1988"), p. 75 (case concerning Burundi: Measures must be taken to make the public aware of the repeal of legislation which formerly permitted the exaction of forced labour). Cf. RCE, 1993, note 7 supra at 109 (case concerning Liberia: The continued practice of forced labour after the repeal of laws which formerly authorized it demonstrated the need for publicity).

144.  RCE, 1993, note 7 supra at 93 (case concerning Brazil: The Government must take "systematic action commensurate with the dimensions and gravity of the problem ...").

145.  International Labour Conference, Report III (Part 4A), Report of the Committee of Experts (Geneva, 1994, p. 140 (case concerning Thailand: The Government should formulate legislative responses to widespread child labour as part of "a comprehensive legal framework").

146.  idem, at 112, case concerning Liberia (the Government should facilitate strict observance of the prohibition on forced labour by ensuring adequate labour inspection, particularly in those sectors thought to be affected by the problem).

147.  See notes 111, 112 supra and accompanying text.

148.  See notes 150-165 infra and accompanying text.

149.  See note 112 supra and accompanying text.

150.  In exempting certain types of labour that would otherwise be "forced or compulsory" under the Convention, Article 2(2) is silent on the question of payment. The silence reflects the irrelevance of the question of payment to the determination of whether a certain type of conduct is exempt from the Convention. See also the discussion on the relationship between payment and compulsion at notes 119, 120 supra and accompanying text.

151.  See, e.g., Memorandum of Observations, note 57 supra at 10-11.

152.  See notes 32-34 supra and accompanying text (methods of apprehension for portering and other forced labour practices).

153.  1979 General Survey, note 114 supra at para. 34.

154.  See generally section III supra (lengthy work assignments, heavy construction and portering duties, participation in military activities and minesweeping, forced sexual services, fatal or serious diseases and injuries).

155.  Prisoners may choose to work for private individuals, so long as the working relationship between a prisoner and the private beneficiary is analogous to that of a freely entered employment relationship, 1979 General Survey, note 114 supra at para. 97.

156.  idem, at para. 94, and note 4 (referring to the 1968 General Survey (note 114 supra), at para. 78; also to the Universal Declaration of Human Rights, UN GA Res. 217A, UN doc. A/810, articles 7-11, (1948); and the International Covenant on Civil and Political Rights, UN GA Res. 2200 adopted 16 December 1966, entered into forced 23 March 1976, UN GAOR 21st Session, Supp. No. 16, UN doc. A/6316, articles 14, 15).

157.  For an analysis of the operation of the military tribunals, judged against the international standards to which the General Surveys refer, supra note 114, see the Lawyers Committee for Human Rights: Summary injustice: Military tribunals in Burma (Apr. 1991) ("Summary injustice"); Beyond the law, note 51 supra at 34-40 (concerns about fair trials according to international standards in Myanmar's civilian and military courts); International Commission of Jurists: The Burmese way: To where? Report of a mission to Myanmar (Geneva, Dec. 1991), pp. 37-54 (Chapter 3: The rule of law and the legal system, concerning laws of the SLORC and the system of military tribunals).

158.  See generally, idem.

159.  See, e.g., Reuters. Sep. 1996, conviction upon arrest of aide to Aung San Suu Kyi, available on Internet.

160.  1979 General Survey, note 114 supra at para. 36.

161.  Only one dissident group is still in open conflict with the Government. See, e.g., the statement by His Excellency U Ohn Gyaw, Chairman of the delegation of the Union of Myanmar to the United Nations, New York (3 0ct. 1995), p. 5.

162.  1979 General Survey, note 114 supra at para. 66, citing 1968 General Survey, note 114 supra at para. 54.

163.  1979 General Survey, note 114 supra at para. 37.

164.  RCE, 1988, note 143 supra at 95 (case concerning Tanzania: minor communal service does not include forced labour, pursuant to law, to implement schemes for agricultural and pastoral development, for construction of works or buildings for the social welfare of residents, or in establishment of any industry or construction of any public utility).

165.  idem.

166.  Article 24 Report, note 17 supra paras. 50, 51. Convention No. 29 provides that States parties may continue to use forced or compulsory labour after their ratification, "during the transitional period, for public purposes only and as an exceptional measure, subject to the conditions and guarantees" subsequently provided, Article 1(2). The guarantees include the provisions in Articles 7-19 and 22-24 of Convention No. 29, 1979 General Survey, note 114 supra at para. 7.

167.  The proceedings of the supervisory bodies of the ILO are properly regarded as a source of international labour law, to which weight should be given. See generally Valticos: International Labour Law (1979), pp. 61, 62.

168.  See note 1 supra and accompanying text.

169.  Article 1(3).

170.  See note 114 supra and accompanying text.

171.  1979 General Survey, note 114 supra at para. 7.

172.  1968 General Survey, note 114 supra at para. 22 (the nature of the undertaking is to suppress forced labour and, after the Convention comes into effect for the country, neither to introduce new forms of forced labour, nor to reintroduce forms which had been abolished).

173.  1979 General Survey, note 114 supra at para. 7

174.  See note 25 supra and accompanying text.

175.  Or even any act of acknowledgment, Nuclear tests cases (Australia v. France) (New Zealand v. France), Judgement of 20 Dec. 1976, ICJ Reports.

176.  idem, pp. 269-70, paras. 50-51, and pp. 474-5, paras. 52-53.

177.  idem, p. 267, para. 44. and pp. 472-3, para. 47.

178.  Frontier dispute: Judgement, ICJ Reports 1986, p. 584, para. 40.

179.  More relevantly, there is no question of a transitional period in this case, Article 24 Report, note 17 supra at paras. 50, 51.

180.  idem.

181.  The conditions and guarantees for the transitional regime are found in Articles 7-19 and 22-24 of the Convention, 1979 General Survey, note 114 supra at para. 7; see also 1968 General Survey, note 114 supra at paras. 19, 20.

182.  See notes 90-104 supra and accompanying text.

183.  See notes 85-87 supra and accompanying text.

184.  Article 8 provides that the responsibility for recourse to forced labour, although delegable, must rest with the highest civil authority. Article 23 provides that complete and precise regulations governing the use of forced labour should be promulgated, and should contain rules permitting complaints from any person from whom forced labour is exacted. Article 24 provides that the regulations governing the use of forced labour should be strictly enforced through methods of inspection.

185.  See notes 11, 112 supra and accompanying text.

186.  Article 9 provides that before recourse to forced labour, any authority competent to exact forced labour must satisfy itself that the work is "of important direct interest for the community" from whom the labour is exacted (Article 9(a)); that the work is of present or imminent necessity (Article 9(b)); that it has been impossible to obtain voluntary labour by the offer of wages and conditions comparable with those prevailing in the relevant area (Article 9(c)); and that the performance of the work will not lay too heavy a burden on the population (Article 9(d)).

187.  See generally section III supra.

188.  See the discussion at notes 160-162 supra and accompanying text concerning whether there is an emergency within the meaning of Article 2(2)(d).

189.  See notes 54-87 supra and accompanying text.

190.  Article 10 provides that forced or compulsory labour exacted as a tax is to be progressively abolished, except in accordance with the same determinations as required under Article 9. See notes 186-189 supra and accompanying text. In addition, the Article requires that the forced labourers be allowed to remain at their habitual residence and that respect for religion, social life and agriculture be observed (Articles 10(d), (e)).

191.  Article 11 provides that only able-bodied males between the ages of 18 and 45 should be conscripted for duty as forced labourers; where they are required to work it should be subject to a medical examination, exemption for certain groups, and respect for communal and personal needs.

192.  See, e.g., note 36 supra and accompanying text.

193.  Article 12 provides that there must be a limit of 60 days forced labour in any year, and that people who have performed forced labour should receive certification of their period(s) of service.

194.  See note 35 supra and accompanying text.

195.  Article 13 requires that working hours and rates of pay should be equal to those prevailing for voluntary labour, and a weekly day of rest should be granted. Except in the case of forced labour as a form of tax, in accordance with Article 10, forced labour should be remunerated at prevailing rates of pay, and precautions should be taken to ensure that those who perform forced labour receive their wages.

196.  Article 15 stipulates that workers' compensation laws shall apply equally to forced labourers as they do to voluntary labourers, and in any case the authority using forced labour is responsible for maintaining the subsistence of any person who is incapacitated as a result of performing forced labour.

197.  See, e.g., Article 24 Report, note 17 supra at para. 41 (Article 24 Committee noting the Government of Myanmar's assertion that the Workmen's Compensation Law is applied in the case of porters).

198.  See notes 43-49 supra and accompanying text (porters suffer gross human rights abuses), and notes 66-73 supra (gross human rights abuses are routine during forced labour on development projects).

199.  Article 16 requires that measures should be taken to ensure that people are not moved to different parts of the country in which their health may be affected or, where that is necessary, to ensure gradual acclimatization. Similar measures should be taken in cases where people are forced to labour at work to which they are not accustomed.

200.  Article 17 provides that in cases where forced labour is to endure for extended periods, measures should be taken to ensure appropriate medical care is available, that the subsistence of the workers' families is ensured, that the cost of the workers' journeys to and from the workplace (including any return by reason of illness or injury) are borne by the authorities, and that workers are given the opportunity to stay as voluntary labourers following their period of compulsory labour.

201.  Article 18 mandates that forced labour for the transport of persons and goods is to be "abolished within the shortest possible period". Where it is used during the transitional period, care is to be taken for the health of the workers performing the work; regulations should limit the duration and nature of the work they are required to perform; and care should be taken to maintain the community from which the workers come.

202.  See generally notes 27-53 supra and accompanying text.

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