INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS (ICFTU)
WHY TRADE MEASURES TO IMPLEMENT THE ILO RESOLUTION ON BURMA WOULD BE ENTIRELY COMPATIBLE WITH WTO RULES
Introduction
The International Labour Conference at its 88th Session (May-June 2000) adopted a resolution on Burma which, inter alia:“recommend[ed] to the Organisation's constituents as a whole – governments, employers and workers – that they: (i) review, in the light of the conclusions of the Commission of Inquiry, the relations that they may have with [Burma] and take appropriate measures to ensure that [Burma] cannot take advantage of such relations to perpetuate or extend the system of forced or compulsory labour (…) and to contribute as far as possible to the implementation of its recommendations; and (ii) report back in due course and at appropriate intervals to the Governing Body”.
In the light of the above, the ICFTU recommended in January 2001 that its affiliates request their governments, firstly to inform them fully about their country’s trade and investment links with Burma, and secondly to consider imposing a ban on investments in Burma and trade with Burma, on the grounds that any commercial or economic links with Burma in effect today help the junta to perpetuate or extend the system of forced or compulsory labour”, in the meaning of the ILO Resolution of June 2000.Much to the ICFTU’s concern, the response of certain governments to our affiliates’ request for trade measures to implement the ILO Resolution was to say that such measures stand to contradict WTO rules, and could lead to a trade dispute on behalf of Burma that would lead to any such trade measures being found an illegitimate trading practice.
In view of the above, the ICFTU wrote to the WTO to request a clarification of the legal situation regarding the implementation of the decision adopted by the International Labour Conference in June 2000. In the light of the WTO’s response and of analysis of the legal issues by various experts, it would appear that the negative arguments concerning WTO rules are unfounded. It should be wholly feasible for governments to take trade measures against the government of Burma without fear of ill-effect. This document summarises the case for such measures and explains the WTO provisions that safeguard the right of countries to take such action.
The arguments developed below are consistent with current ILO efforts to ascertain on the ground the extent to which the authorities of Burma have implemented the recommendations of the ILO Commission of Inquiry in the legal, administrative and judicial fields. An ILO High Level Team (HLT) visited the country for this very purpose and its report is to be examined by the Governing Body of the ILO. Based in its own investigations, the ICFTU does not expect that session of the Governing Body to alter its earlier calls for the international community to take concrete measures aimed at compelling the junta to cease its forced labour practices.
1. The ILO resolution
The text of the ILO Conference resolution calls on governments, employers and workers to review their relations with Burma, and then take whatever measures are necessary to ensure that Burma cannot take advantage of such relations to perpetuate or extend the system of forced or compulsory labour.
Forced labour in Burma has clearly been continuing on a vast scale since this resolution was passed in June 2000. Ever since that date, the ICFTU has continued to supply the ILO with ample evidence of forced labour being used in various areas of the economy, including the production of many goods being sold on world markets, such as agricultural, agro-forestry and other products. It has in fact become virtually impossible for any foreign firm, company, government or other institution to conduct any trade or other economic activity with or in Burma without providing direct financial support to the military junta, mainly its most senior members. Regular reports from Burma make this crystal-clear in the textile, clothing and garments sector, where the military or their relatives and allies directly benefit from foreign investments, through joint ownership, lease of land or of production premises and other means. At the same time, working conditions in this industry are appalling and various restrictions imposed on the workforce (compulsory overtime, often unpaid, and prevention from leaving the employer's premises even when off work) in practice amount to forced labour.
Other foreign investments, for instance in the extraction industries, are linked to forced labour through the use of infrastructure which is constructed and/or maintained with forced labour of civilians, or the security of which is ensured by Burmese army units supported by forcibly recruited porters and other civilians. While foreign companies actually pay the Burmese army for such services, the forced labourers concerned are rarely compensated, if ever. It should be noted that these practices are identical to those denounced by the ILO Commission of Inquiry in 1998 .In other words, any commercial or economic links with Burma in effect today help the junta to perpetuate or extend the system of forced or compulsory labour. Therefore, in order to implement the ILO Conference resolution, it is essential that imports from and exports to Burma be restricted. That inescapable meaning of the ILO Conference resolution could not be clearer or subject to misinterpretation.
2. GATT Article XX(a): public morals
Article XX(a) of GATT refers to “measures necessary to protect public morals” as an acceptable justification for restrictions on trade. In this regard, it is clear that a national choice to refuse to undertake trade with a country employing forced labour is an expression of the public morals of the country taking such measures.Therefore it would be permissible under WTO rules for a country to employ this provision of the GATT to justify a ban on imports from Burma and/or exports to Burma.
3. GATT Article XX(b): human health
This GATT provision refers to the legitimacy of measures necessary to protect human, animal or plant life or health. While it has always been used in the past in cases of protecting human health in the importing country (for example in the case of food products considered to be dangerous to human health), there is no indication in the GATT text that it could not be used to protect human health in the exporting country, in this case by preventing the expansion of exports produced to the detriment of the health of the workers concerned.
It should be noted that the ILO Commission of Inquiry has described in details appalling violations of the right to health inflicted upon civilians subjected to forced labour, including deprivation of health care, food, water and rest . All of these have continued to be associated with hundreds of cases of forced labour reported by the ICFTU to the ILO since the June 2000 adoption of the ILC Resolution.It would thus be entirely possible to use GATT Article XX(b) in defence of a trade action against Burma.
4. GATT Article XX(e): prison labour
The adoption of measures relating to the products of prison labour is explicitly provided for under the WTO Agreement (GATT Article XX(e)). The interpretation of prison labour” has never been clarified in GATT jurisprudence. There is a strong argument that this provision could be interpreted as offering a justification for trade measures against forced labour. That is particularly the case since the WTO Appellate Body has applied the international law principle of evolutionary interpretation when determining the scope of the general exceptions recognised by the WTO Agreement in the area of environmental protection. Any WTO panel could well decide that if this article were to be drafted nowadays, it would certainly cover a wider scope than just prison labour in order to meet its objectives and also include forced labour.
Furthermore, ever since the adoption of the ILO resolution in June 2000, the Burmese military have noticeably stepped up their forced labour recruitment drive by indiscriminately arresting civilians under the flimsiest pretexts, sentencing them to heavy prison terms and then incorporating them as porters and human mine-sweepers in frontline units. The main reason for this undoubtedly lies in the fact that prison labour is not considered as a violation of ILO Convention n° 29 if it has been imposed as a result of a lawful conviction in a proper court of law. This is hardly ever the case in Burma.
In Burma, prison labour and forced labour are virtually the same thing. And the legal principle of evolutionary interpretation would apply in the area of human rights, allowing GATT Article XX(e) to be used to justify trade measures to stop forced labour in Burma.
5. GATT Article XXI(c): United Nations
This GATT article allows countries to introduce trade restrictions, if that is “in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security. While this provision has in the past been taken to mean the decisions of the UN General Assembly or Security Council, the provisions should equally apply to decisions taken by a specialised agency of the United Nations, in this case the ILO. Promoting the respect of human rights in a UN member state, i.e. Burma, would contribute to achieving international peace and security by reducing a major source of regional tension arising from the repression of minority groups by the Burmese government. In fact, many of these minority groups are among the most exploited by the practice of forced labour and consequently are forced into exile in neighbouring states such as Thailand, Bangladesh and India. Cross-border attacks by Burmese troops and militias against these refugee camps further increase destabilisation and lawlessness in the bordering areas. Ending forced labour would eliminate that source of international tension and insecurity.
Full implementation of the ILO Conference resolution, through trade measures, would assist in attaining international peace and security and so would come under GATT Article XXI.
6. Burmese junta strategy: avoiding international confrontation
The approach of the SPDC, and before it the SLORC, has consistently sought to avoid international discussions of its policy. For example, in the case of the European Union’s GSP investigation of Burma over 1996-97, it was only in the last months of the investigation that the junta finally decided to offer limited co-operation, thus seeking to avoid the EU’s trade sanctions – unsuccessfully, in the event. That case is a typical illustration of the junta’s preference not to encourage any examination of its human rights policy.
Therefore, it is highly probable that the junta would not wish to raise international opprobrium of its policies by running a highly visible and controversial trade dispute process at the WTO, which could not fail to attract an unprecedented degree of world attention and result in a further report of several hundred pages on the violation of human rights in Burma.
Conclusion: the need for trade sanctions now
All in all, the above arguments demonstrate clearly that there is no down-side to taking trade measures against Burma. Such measures would put enormous pressure on the junta to cease the present worsening level of violations of basic human rights. The legal and the moral cases for action are clear. There is no further excuse for governments refraining from implementing trade action against Burma in the shortest possible delay.