Report of ILO mission to Burma
89th Session, Geneva, June 2001
Committee on the Application of Standards
Developments since the 280th Session of the Governing Body (March 2001): Arrangements for an objective assessment of the situation of forced labour following measures taken by the Myanmar Government
(Mission to Yangon, 17-19 May 2001)
Introduction
While considering that the conditions had not been met for the provisions contained in the Conference resolution of June 2000 to be rendered inappropriate, the Governing Body noted during its 279th Session in November 2000 that the Director-General should continue to extend cooperation to the Government of Myanmar in order to promote full implementation of the recommendations of the Commission of Inquiry.
During its 280th Session in March 2001, the Director-General informed the Governing Body, in opening the discussion on the report concerning the implementation of the measures decided by the Conference (GB.280/6),of the efforts which he had undertaken with the Myanmar authorities in order to fulfil the second aspect of his responsibilities. In his letter of 1 March 2001 to the Minister for Labour, he had expressed the view that the Myanmar authorities could not expect to receive any recognition for the framework of measures and subsequent action which they said they had taken, in the absence of an objective assessment by the ILO of their practical implementation and actual impact on the forced labour situation.
Following that letter, he had received a visit from the Deputy Minister for Foreign Affairs, Mr. Khin Maung Win, on 22 March 2001. During a very frank discussion,the Deputy Minister had indicated that the authorities were disposed to enter quickly into discussions on the modalities of an objective assessment.
That information was received with interest, and the Governing Body decided that any further developments should be reflected in the report to be submitted to the Conference Committee on the Application of Standards at its meeting in 2001, in accordance with paragraph 1(a) of the resolution adopted in June 2000. The present report follows up that decision. Its purpose is to set out the developments that have taken place since the Governing Body's last session, and in particular to give an account of the origin and results of the mission which visited Yangon between 17 and 19 May 2001 in order to decide on the modalities for an objective assessment of the implementation and impact of the framework of measures put in place from October 2000 onwards.
Origin of the mission
During a meeting with the Director-General on 22 March 2001, Mr. Khin Maung Win had said that the Permanent Representative of Myanmar in Geneva, Ambassador U Mya Than, would be appointed to undertake discussions with the Office regarding the modalities of the objective assessment. During those preliminary discussions, it soon became clear that it was not realistic to expect the two successive stages of the implementation process (agreement on modalities and, in the case of such agreement being reached, the carrying out of the assessment itself) could be undertaken before the Conference, given the logistical constraints and the deadlines associated with the second stage. The parties therefore set a target of reaching a clear and firm commitment from the authorities regarding the modalities of such an assessment before the International Labour Conference, on the understanding that such a commitment would be followed up as soon as possible by the assessment itself, so that the Governing Body could be informed of the results during its November 2001 session. The letter of the Minister for Labour dated 26 April 2001 and the Director-General's reply of 10 May 2001 are the two principal reference points in the development of discussions on that subject.
It followed from the Director-General's letter of 10 May that, in order to finalize the modalities in question and obtain before the Conference a specific and definitive commitment based on parameters previously discussed with the Ambassador (concerning issues such as who would carry out the assessment, when it would begin and how long it would last, and what practical and legal guarantees would be provided for it), discussions would have to be held in Yangon with all the ministries concerned.
It was for this reason that a new mission visited Yangon between 17 and 19 May 2001. Its members were as follows:
- Mr. Francis Maupain, representative of the Director-General;
- Mr. Dominick Devlin, Legal Adviser;
- Mr. Rueben Dudley, Deputy Director, ILO Regional Office for Asia
and the Pacific;- Mr. Richard Horsey, Secretary.
Progress and findings of the mission
The mission, like the previous ones, attracted a degree of interest among the diplomatic community in Yangon and among the United Nations agencies. In order to respond to that interest, and despite the limited time available, the mission was anxious to organize a number of information sessions, with the assistance of the United Nations Resident Coordinator. The mission's detailed programme is given in Appendix 4. During the first working session following the mission's arrival in Yangon, the representatives of the various ministries concerned informed the mission that they had taken a number of measures since the adoption of the new framework of legislative, executive and administrative measures. To illustrate those efforts, the Secretary of the "Implementation Committee for Convention No. 29", U Soe Nyunt, drew attention to action which had been taken to publicize those measures as well as to the visits that had been organized to different parts of the country in order to examine the realities of the situation in the light of previous allegations.
The mission emphasized that the purpose of its present visit was quite different from that of the previous missions. The purpose was not to re-examine the substantive issues dealt with in the report of the Commission of Inquiry. Neither was it the purpose of the visit to set up a new Commission of Inquiry, although the Government was free to request such a step under article 34 of the ILO Constitution. As the Director-General had made clear in his letter of 1 March and in his presentation to the Governing Body in March,the purpose of the objective assessment now being considered was more specific: it was to assess the practical implementation of the legislative, executive and administrative framework that had been put in place and its actual impact on the forced labour situation in the country.
The mission drew attention to the fact that the Committee of Experts on the Application of Conventions and Recommendations had discussed the framework of measures at its previous meeting in December 2000, and its observation in its report to the Conference provided some valuable indications as to the points to be considered when the objective assessment was undertaken. The Committee of Experts, while expressing regret that the views of the October 2000 Technical Cooperation Mission had not been fully taken into account, nevertheless noted that the legislative measures adopted "could provide a statutory basis for ensuring compliance with the Convention in practice, if given effect bona fide not only by the local authorities empowered to requisition labour under the Village and Towns Acts, but also by civilian and military officers entitled to call on the assistance of local authorities under the Acts". With that in mind, the Committee had given a number of indications regarding further measures that could be undertaken (Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), 2001, page 149).
The object and scope of the assessment being thus delineated, the mission emphasized that the modalities were of necessity dictated by the nature of the task: they had to provide every possible guarantee that the assessment would be objective and credible. The members of the High-Level Team (HLT) responsible for the assessment would therefore have to be appointed by the Director-General solely on the basis of their recognized impartiality, experience and technical competence including knowledge of the region; the duration of the HLT's visit should be sufficient to allow it to form an opinion, while recognizing the possible constraints as regards the availability of the HLT's members; and finally, the HLT needed to be allowed complete discretion with regard to the organization of its programme of activities and meetings. The mission expressed the hope that those parameters could be translated into a specific text during the course of the visit.
Those basic considerations led to discussions during which the mission drew up an initial draft "Understanding". That in turn gave rise to numerous proposed amendments and counter amendments until quite late in the afternoon of Saturday,19 May. Two main difficulties had to be faced. The first concerned the appointment by the Director-General of the members of the HLT, which the authorities wished to be subject to their prior approval. That demand was not accepted. It was, however, made clear that the expression "recognized qualifications" used in point I of the text implied that the qualifications required of members of the HLT would have to be recognized by all, including the Myanmar authorities; that interpretation was subsequently confirmed in writing, at the latter's request. The second difficulty related to the discretion of the HLT to determine the programme which it regarded as necessary for conducting the assessment. The solution that was adopted acknowledged that that discretion could be limited by considerations of security - including the security of members of the HLT itself - but stipulated that those considerations must be "valid"; it also provided for a mechanism to overcome any difficulties that might arise in that regard, namely, the possible assistance of an independent "facilitator" recognized as knowledgeable and fair by all parties concerned. On that basis, the full text of an "Understanding" was finally agreed.
Before leaving Yangon, the mission was received by the Deputy Minister for Foreign Affairs, Mr. Khin Maung Win, who had been kept regularly informed of the progress of the discussions and who welcomed the news that they had finally led to an "Understanding". He expressed the willingness of the Government to make the assessment process a success and asked the mission to communicate to the Director-General his Government's wish to assist the HLT as much as possible in achieving its objectives. If difficulties arose, they could be discussed openly. The Government was firmly committed to resolving the issue.
The final text, as initialled by both parties at the airport after final amendments, is reproduced in Appendix 5. Before leaving, the representative of the Director-General expressed the concern that the content of the Understanding and its implications should be communicated to the General Secretary of the National League for Democracy (NLD). Since it had been unable to do so directly, given the various constraints which it had had to face, the mission, on behalf of the Director-General, asked Mr. Léon de Riedmatten, former ICRC delegate and currently representative of the Centre for Humanitarian Dialogue, to do so instead.
The mission could not conclude its report without thanking Mr. Patrice Coeur-Bizot, the United Nations Resident Coordinator, and his assistant, Ms. Jeanne Lennkh, for their valuable support in the organization of meetings and in ensuring the smooth progress of the mission. It also wishes to thank Mr. Léon de Riedmatten for the very useful advice which he imparted to the mission on the basis of his particular experience and role. The mission was encouraged by the contacts which it had with the international organizations represented in Yangon and with the current ICRC delegate, Mr. Michel Ducraux.Overall, those organizations expressed a strong interest in contributing in a concrete way to the success of the present undertaking and in particular to promoting the development and implementation of the programme of the future high-level team as far as their knowledge and resources permit.
Geneva, 31 May 2001.
Appendix 4
List of meetings held
The mission held 16 meetings in Yangon over three days. It met with the Deputy Minister for Foreign Affairs, senior officials from three ministries (Foreign Affairs, Home Affairs, and Labour), and from the Attorney-General's Office and the Office of Strategic Studies, representatives of 26 diplomatic missions, seven United Nations agencies, a representative of the Geneva-based Centre for Humanitarian Dialogue, and a representative of the ICRC.
Appendix 5
Understanding on an ILO objective assessment
Recalling previous discussions which were reported to the Governing Body at its March 2001 session relating to the possibility of an objective assessment being carried out by the ILO with respect to the practical implementation and actual impact of the framework of legislative, executive and administrative measures reported by the Government, within the overall objective of the complete elimination of forced labour in law and in practice;
Recognizing now the desirability of such an assessment being carried out as soon as practicable;
Noting the importance in this connection of the observation made by the ILO Committee of Experts on the Application of Conventions and Recommendations in its 2001 report;
Aware of the need to respect the sovereign right of the country as well as the independence of the Organization in the discharge of its functions;
The Government of Myanmar agrees to receive a high-level team (HLT) to carry out an objective assessment under the following conditions designed to ensure its credibility:
1. The team will be composed of high-level persons appointed by the ILO Director-General on the basis of their recognized qualifications, impartiality and knowledge of the region.
2. Taking into consideration seasonal weather conditions, the assessment shall be carried out in September 2001. The time needed to carry out the assessment in Myanmar could involve up to three weeks.
3. The members of the HLT shall enjoy, for the purpose and duration of the mission, the same protection and status accorded to officials of comparable ranks in the United Nations.
4. The HLT shall have complete discretion to establish and implement its program of work, meetings and visits, taking into account the indications provided, inter alia, in the aforementioned observation of the Committee of Experts on the Application of Conventions and Recommendations, and subject only to valid considerations of security. For this purpose, the HLT shall be accorded full cooperation from the relevant Myanmar authorities. During the establishment and implementation of the HLT's programme, the HLT and the Government may call upon the assistance of a facilitator recognized by all parties concerned as being a knowledgeable and fair intermediary.
5. Based on the results of the assessment, the HLT may provide such advice and comments as it deems appropriate.
6. The report of the HLT will promptly be made available to the Director-General and the Government and transmitted to the Governing Body for consideration at its November 2001 session.
19 May 2001. (Initialled) U Soe Nyunt,
Chairman of the Myanmar Negotiating Team.
Francis Maupain