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From rights to duties in protecting people against forced labour: Some observations from Myanmar and the ILC Forced Labour Committee

created Aug 27, 2014 11:55 AM

Piyamal Pichaiwongse, Deputy Liaison Officer, ILO Yangon

By Piyamal Pichaiwongse, Deputy Liaison Officer, ILO Yangon, 27 August 2014

Until recently, the main types of forced or compulsory labour encountered in Myanmar were traditional forms of forced labour imposed by the Government and its different organs, left behind in the country as a legacy of colonization. For a person with years of experience in addressing forced labour in this unique Myanmar context, being invited to take part as one of the experts in the Forced Labour Committee at the 2014 International Labour Conference (ILC) was an interesting experience. The task of this Committee was to consider new legal instruments to address modern forms of forced labour, and this focus gave rise to many lively debates among the Committee members. One of the questions debated was: Who has the primary duty to prevent and address forced labour in its modern forms? Or in other words, what are the responsibilities of governments and business in eradicating the problem?


To me personally, it was most fascinating to witness the entire deliberation of the Committee and its tripartite members. This was the first time I had the chance to witness the tripartite dynamics among Committee members and their commitment in drafting new legal instruments – more specifically the Protocol and the Recommendation to supplement the Forced Labour Convention, 1930 (No.29). All this was done in the knowledge that the supplementary legal instruments would most likely outlive our lifetime.


Among the many issues addressed, the issue of primary responsibility to prevent and address forced labour was discussed twice by the Committee. First, it was discussed in the deliberation on the language for the Protocol Article 2 on prevention of forced labour. On this specific point, all parties agreed that the State bears the primary duty to prevent forced labour, but that the private sector also has a duty to take action, as described in the UN Guiding Principles on Business and Human Rights. The adopted Article 2(e) subsequently stipulates:


2. The measures to be taken for the prevention of forced or compulsory labour shall include: --

(e) supporting due diligence by both the public and private sectors to prevent and respond to risks of forced or compulsory labour.


The second time the issue of primary duty of the State was debated in the deliberation on the language for the Recommendation Article 4(j), which provides further guidance on prevention of forced labour. A proposal was made by the Governments’ group to include a clause to encourage employers and businesses to take effective measures to prevent forced and compulsory labour in their operations and supply chains. The proposed measures included conducting due diligence and risk assessment, setting up mitigation measures and monitoring mechanisms, providing remediation measures where appropriate, and reporting in a transparent manner about these efforts.


The proposed language put forward by the Governments’ group was not accepted by the Employers’ group, as they saw it as effectively asking companies to substitute national labour inspectorates. The Employers acknowledged the importance of company compliance programmes, but noted that the risks of forced labour were highest in the informal and unregulated parts of the economy, rather than in the formal economy. They therefore emphasized the duty of the State to have an effective system in place to monitor and ensure the enforcement of relevant legislation. In response to the Employers, the Governments’ group acknowledged that the primary responsibility to prevent forced labour rests with Governments, but consistently emphasized that businesses should also be encouraged to take measures to prevent and address the problem.


With Employers and Governments standing firm behind their positions, the deliberations came to a deadlock until the Employers’ Group proposed setting up a tripartite working party to look specifically into this clause. The tripartite working party came up with a new text, which was subsequently adopted by the Committee. The adopted Article 4(j) reads as follows:


4. Taking into account their national circumstances, Members should take the most effective preventive measures, such as: --

(j) in giving effect to their obligations under the Convention to suppress forced or compulsory labour, providing guidance and support to employers and businesses to take effective measures to identify, prevent, mitigate and account for how they address the risks of forced or compulsory labour in their operations or in products, services or operations to which they may be directly linked.


In my view, the key difficulty in these debates was reaching an agreement among the tripartite Committee members on each party’s roles and responsibilities. Until the questions “who is to do what?” and “how can each party support each other practically to fight forced labour?” were sorted out, it seemed very difficult for the parties to reach an agreement. The debate was no longer on issues of principle, but on how well the language could capture the ongoing reality of forced labour, and how much the parties could realistically demand from each other to effectively fulfil their respective roles.


During these debates a representative from the Workers’ group made a very useful point reminding the Committee members about the 2013 Rana Plaza disaster in Bangladesh and some of the factors behind the legal violations in that case. These included negligence, increased pressure to make immediate profits, and government budget restraints which prevent the establishment of an effective labour inspection system. Noting these factors – and the fact that some large companies have turnover bigger than national budgets in developing countries – the Workers’ representative reminded the Committee that companies do have a responsibility to take action. This example, I felt, was a wakeup call for the Committee, and it reminded the Employers and Governments to take a step back, to recognize the reality, and to do their best to identify a practical solution to a deadlock. In the end, thanks to active involvement of the tripartite members, an agreement was reached on balanced texts for both instruments.


Looking again at the situation in Myanmar, the debates at the Forced Labour Committee are a useful reminder that in Myanmar, like in the ILC deliberations, the Government and business need to recognize each other’s roles in ensuring respect for workers’ fundamental rights. In the past the Government tended to perceive protection of its people as its own right (rather than a duty), and it could bring about measures to that end as it saw fit. The employers had no space in these efforts, and the voice of workers was not to be heard. Since the opening up of the country in late 2010, many new businesses have arrived to invest. Many laws are being revised in all thematic sectors, including labour. The new legal framework will enable businesses to access labour across the country and will allow the labour inspectorate to play a more substantial role in improving labour practices. Ensuring good labour practices at all workplaces, including those at the lower tiers of the supply chains, will definitely assist the country in its effort to end forced labour and to support the evolution of a new and healthy society based on a new and healthy economy. It is vital that Government and business work together and play a constructive role in this rebirth of the country. The shift from the right of the government to the duty of the government and the business sector to work together is somewhat new to Myanmar. However, the work toward achieving this complete change has started.


In the end, it is important to remember that the adoption of the new Protocol and Recommendation on modern forms of forced labour does not mean that the ILO has ruled out the continued existence of traditional forms of forced labour. The fact that the language of the Protocol and the Recommendation consistently refers to “forced or compulsory labour” is a proof of that, and has legal implications. Firstly, compulsory labour is the form of forced labour that people in a given country are subjected to with the order or instruction of the government, as in the situation of Myanmar. Secondly, the definition of forced or compulsory labour as established in Article 2 of the original Forced Labour Convention, 1930 (No. 29) remains valid and incorporates both modern and traditional forms.

Committee - 1Committee - 2

The Committee was deadlocked before a compromise was reached

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