Court/Judicial body: International Labour Organization
Date: 1998 CRC
Provisions: Convention on the Rights of the Child (general reference)
Other international provisions: International Labour Organization Constitution (Articles 1, 6 – 18, 25) International Labour Organization Convention No. 29 on Forced Labour International Labour Ortanization Convention No. 105 on the Abolition of Forced Labour UN Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery
Domestic provisions: Towns Act, 1907 Village Act, 1908 Penal Code, Section 374 People’s Council Act (1974)
Case summary
Background: A complaint was filed with the International Labour Organization alleging a systemic and widespread practice in Myanmar of extracting forced labour across the country for both public purposes, including military activities, and private benefit. The complaint alleged that men, women and children, in particular members of minority ethnic and religious groups, were all victims of forced labour, and that many forced labourers were additionally forced to endure severe physical and sexual abuse. Children were reported to have been sent to work on construction sites and military camps in lieu of attending school, and were in some instances used as human shields and minesweepers. The complaint further alleged that national laws in force specifically authorised the extraction of compulsory labour and provided for fines and imprisonment to be imposed on persons failing to comply.
Issue and resolution: Child labour; violence against children. The Commission found that Myanmar’s laws and practices had extensively violated the Convention against Forced Labour and made recommendations to the effect that these violations be immediately ceased.
Court reasoning: The Commission found Myanmar’s laws and practices to be in contravention of the Convention on Forced Labour given the abundance of evidence showing the pervasive use of forced labour by government authorities and the military, noting in particular the greater burden placed on ethnic and religious minorities. Accordingly, the Commission recommended that Myanmar without delay repeal all legislation authorising forced labour and cease imposing forced labour in practice. In conducting its inquiry, the Commission also noted that the Committee on the Rights of the Child had expressed concern at reports relating to abuse and violence perpetrated against children, paticularly with regard to cases of rape, children systematically forced into labour, the forced recruitment of child-soldiers, and the insufficient measures taken to provide physical and psychological recovery and social reintegration services for child victims.
Excerpt citing CRC and other relevant human rights 170. The human rights situation in Myanmar was first examined by a United Nations body when the Commission on Human Rights considered the question in 1990 under the procedure established by Economic and Social Council resolution 1503. At the present time, the General Assembly, the Commission on Human Rights and certain of its subsidiary bodies, the Secretary-General and the Committee on the Rights of the Child are following closely the question of forced labour in the country. This section of the report describes their work in this respect. … 192. Since 1993, the Commission on Human Rights has been urging the Government “to restore full respect for human rights and fundamental freedoms ” and “to put an end to violations of the right to life and integrity of the human being, to the practices of torture, abuse of women and forced labour and to enforced disappearance and summary executions”; furthermore, it appealed to the Government “to fulfil its obligations as a State party to the Forced Labour Convention, 1930 (No. 29)”. Since 1994, it has been reminding the Government “of its obligation to put an end to the impunity of perpetrators of violations of human rights, including members of the military, and its responsibility to investigate alleged cases of human rights violations committed by its agents on its territory, to bring them to justice, prosecute them and punish those found guilty, in all circumstances”.
In 1997, it expressed its deep concern at “violations of the rights of children in contravention of the Convention on the Rights of the Child, in particular by the lack of conformity of the existing legal framework with that Convention, by systematic recruitment of children into forced labour, and by discrimination against children belonging to ethnic and religious minority groups”. In 1998, the Commission on Human Rights expressed its deep concern at “the widespread use of forced labour, including work on infrastructure projects and as porters for the army”. It therefore decided to extend the mandate of the Special Rapporteur for a further year and to continue its consideration of the question at its Fifty-fifth Session. … 194. The Committee on the Rights of the Child, established under Article 43 of the Convention on the Rights of the Child, to which Myanmar adhered on 15 July 1997, examined the report supplied by Myanmar in 1997 in accordance with its obligations under the Convention. The Committee expressed concern at the reports from various sources concerning cases of abuse and violence perpetrated against children, particularly cases of rape and of children systematically forced into labour, including as porters. It noted with concern the forced recruitment of child-soldiers and the insufficient measures taken to provide physical and psychological recovery and social reintegration to children victims of any form of neglect, abuse and/or exploitation. The Committee therefore recommended the Government to take all necessary measures to remedy the situation and bring it into conformity with the provisions of the Convention and in particular that the army should refrain from recruiting under-aged children and that forced recruitment should in all cases be abolished.
CRIN comments: CRIN believes this inquiry is consistent with the CRC. Under Article 32 of the Convention, children have the right “to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.” This provision undoubtedly includes forced labour, particularly in the context of public infrastructure projects and military activities. Given the serious and systemic nature of the violations of this sort examined in Myanmar and that country’s obligations under the CRC to protect children from economic exploitation, the Commission appears to have been well within its authority to demand that laws and practices enabling the forced labour of children be addressed without delay.
Citation: 151998BUR029
Link to Full Judgment: Download at http://www.ilo.org/ilolex/english/index.htm