Practice on the use of article 33 of the ILO Constitution
The provisions of article 33 of the ILO Constitution do not stipulate the nature of the measures that the Governing Body may recommend for adoption by the International Labour Conference where a Member flagrantly and persistently fails to carry out its obligations. The provisions result from an amendment to the ILO Constitution adopted in 1946. The text of article 33 adopted in 1919 only provided for economic sanctions that could be imposed on a Member in the event of its failing to carry out the recommendations of a COI. The original provision had “been carefully devised in order to avoid the imposition of penalties, except in the last resort, when a State has flagrantly and persistently refused to carry out its obligations under a Convention.” (Click to read the Report presented by the Commission on International Labour Legislation, p. 266).
The amendment of 1946 broadened the range of measures that might be recommended, leaving the Governing Body full discretion to adapt its action to the circumstances of the particular case (Report of the Delegation for Constitutional Questions, Part 1, para. 64).
It is understood that the Governing Body nevertheless has good reason for basing its decision on two criteria. The first ensues from the recommendations of the Commissions of Inquiry themselves: that the measure to be taken must correspond to the objectives of the COI’s recommendations. The second criterion ensues from article 33 itself and concerns the fact that the measures must be deemed by the Governing Body to be appropriate for securing compliance with the recommendations of the COI (Governing Body document GB.276/6, para. 19).
It is also understood that the Governing Body cannot propose a decision concerning the suspension or expulsion of a member State. This is to be concluded from the fact that the two constitutional amendments adopted by the International Labour Conference at its 48th Session in 1964 concerning the suspension or expulsion of a Member did not enter into force because the number of ratifications was too low (Governing Body document GB.276/6, para. 20).
The Governing Body has so far only once used the authority bestowed on it by article 33.
- In 1999, it proposed action which would culminate in the International Labour Conference adopting two resolutions recommending restrictions on Myanmar’s participation in the Organization and the wider international community.
- The COI set up by the Governing Body in 1997 to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), in response to a complaint against the Government of Myanmar made by 25 Workers’ delegates to the International Labour Conference, concluded its work in 1998. It found that there was abundant evidence of “the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military” and made several recommendations for action to improve the situation (Click to read the report of the COI appointed to examine the case of Myanmar, para. 528).
- The Director-General subsequently reported back to the members of the Governing Body in May 1999 that there was “no indication that the three recommendations of the Commission of Inquiry have yet been followed”.
- In view of the gravity of the situation, the International Labour Conference in 1999 adopted a resolution deeply deploring the continued infliction of “the practice of forced labour – nothing but a contemporary form of slavery – on the people of Myanmar”, and resolving “that the attitude and behaviour of the Government of Myanmar are grossly incompatible with the conditions and principles governing membership of the Organization”. It also decided “that the Government of Myanmar should cease to benefit from any technical cooperation or assistance from the ILO, except for the purpose of direct assistance to implement immediately the recommendations of the Commission of Inquiry” and “that the Government … should henceforth not receive any invitation to attend meetings, symposia and seminars organized by the ILO, except such meetings that have the sole purpose of securing immediate and full compliance with the said recommendations, until such time as it has implemented the recommendations of the Commission of Inquiry” (Click to read the Resolution on the widespread use of forced labour in Myanmar).
- In March 2000, the Governing Body submitted a number of measures under article 33 to be considered by the International Labour Conference for adoption.
- In June 2000, the International Labour Conference adopted a Resolution recommending (a) to ILO constituents to review their relations with Myanmar “to ensure that the said Member cannot take advantage of such relations to perpetuate or extend the system of forced or compulsory labour referred to by the Commission of Inquiry, and to contribute as far as possible to the implementation of its recommendations”; and (b) to international organizations to reconsider their cooperation with Myanmar “and, if appropriate, to cease as soon as possible any activity that could have the effect of directly or indirectly abetting the practice of forced or compulsory labour”.
- While the restrictions remained in place, the CAS reviewed the situation with respect to the implementation of the recommendations of the COI every year “at a sitting of the Committee on the Application of Standards specially set aside for the purpose” (Click to read the Resolution concerning the measures recommended by the Governing Body under article 33 of the ILO Constitution on the subject of Myanmar).
- In 2012, the International Labour Conference resolved to lift the restrictions in light of progress made by Myanmar towards complying with the recommendations of the COI (Click to read the Resolution concerning the measures on the subject of Myanmar adopted under article 33 of the ILO Constitution). The substantive progress noted by the CAS and the CEACR in the same year included:
- (i) the orders issued by the Commander-in-Chief of the Defence Services in March 2012 advising all military personnel that strict and stern military disciplinary actions shall be taken against perpetrators of military under-age recruitment, and those of April 2012 which make the new law prohibiting forced labour applicable to the military with perpetrators being prosecuted under section 374 of the Penal Code;
- (ii) budget allocations made for the payment of wages for public works at all levels for 2012–13;
- (iii) the progress made on the translation into local languages of the brochure on the complaints mechanism;
- (iv) the statement made by the President on May Day 2012 committing the Government to acceleration of action to ensure the eradication of all forms of forced labour; and
- (v) disciplinary measures taken against 166 military personnel and action taken under section 374 of the Penal Code against 170 other government officials and five military personnel. (Click to see in the NORMLEX database the CEACR observation, adopted in 2012 and published in the report submitted to the 102nd Session of the International Labour Conference (2013)).