Edited by Adelle Blackett and Anne Trebilcock
Chapter 35: The curious incident of the ILO, Myanmar and forced labour
AbstractMyanmar/Forced Labour is the most famous and fully litigated case in ILO legal history. Though Myanmar itself is rife with complexity, the facts and law in this case were straightforward: the country had a well-documented history of forced labour abuses on a massive scale, organized and directed by the authoritarian military regime despite ratification in 1955 of the ILO’s most important Convention prohibiting forced labour, Convention No. 29. The Commission found ‘a widespread and systematic’ violation and invoked Article 33 of the ILO Constitution. But a hint that the case involved something more interesting is that it was, astonishingly, the first and only case since the ILO’s founding in 1919 in which the ILO legal machinery was ever fully deployed. This hard-to-digest fact cannot be explained away by believing that there was hitherto universal compliance in the 185 member States in relation to almost several hundred Conventions. What looked like the ‘most normal and easiest’ of cases turns out to be a remarkable exception: it allows an examination of some commonplace ideas about broader ILO law, and suggests that ‘doing nothing’ can itself constitute a ‘curious incident.’ And although Article 33 was invoked, there were no real ILO sanctions: even in the case of a politically easy target, a ‘pariah’ state committing what the Commission of Inquiry regarded as a ‘crime against humanity,’ the ILO did not ultimately utilize the standard model of law enforcement set out in the ILO Constitution. It is thus hard to imagine a case in which it would be. The ILO is an institution which is based upon a ‘gamble on persuasion,’ and the Article 33 ‘bluff’ has now been called.
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