Comments on forced labour in Myanmar

These are comments by Professor Hilary Charlesworth on Richard Horsey‘s new book Ending Forced Labour in Myanmar: Engaging a Pariah Regime (Routledge). The remarks were delivered on 17 May 2011 at the Myanmar/Burma Update, College of Asia and the Pacific, Australian National University.

I am delighted and honoured that Trevor Wilson asked me to launch this fascinating book by Richard Horsey. It’s great that the author, Richard Horsey, is able to be here today. The book is written with the assurance of an insider’s deep knowledge – Richard worked in Burma for the ILO for ten years. We also share the privilege of having worked with that great Australian, Sir Ninian Stephen (about 20 years apart!). I think Richard captures perceptively Sir Ninian’s wisdom and humour in the book.

As all of you know, I am not an expert on Burma. Let me confess also that I am not an expert on the ILO. I’m rather a generalist type of human rights lawyer. So the question my family asked me is ‘why are you launching this book’? I also pondered the same question until I sat down and read the book and discovered that it is a rich and engaging case study of the way that international standards can be deployed to influence a state’s behaviour, even a state that is reclusive and suspicious of the international community. It shows both the potential as well as the limitations of international organisations to bringing pressure to bear on a state, Burma or Myanmar, which is generally willing to stonewall in the face of international disapproval.

In this sense, I think the book provides a valuable source of material and inspiration not only for regional experts and those who study the workings of international institutions, but also for generalist scholars like me. The book begins with the story of the young woman who came to Richard’s ILO office in 2004, saying that she planned to prosecute government officials for ‘forcing her back to work against her will’. To Richard’s surprise, she persevered in this quest and nine months later succeeded in having the responsible government officials sent to prison.

This was not an isolated case: the ILO complaints system has been used successfully by a number of Burmese to prosecute complaints of forced labour. At first sight, this seems quite puzzling:  why would a ‘pariah state’ allow a system based on an international treaty to operate in this way? Even countries that pride themselves on being good human rights respecters, such as Australia, are very wary of allowing international procedures to be used to criticise their human rights record.

Of course, not all the attempts to deploy the international standards have been successful: some of the complainants were harassed and even imprisoned themselves on trumped up charges. And forced labour remains a significant issue, particularly in remote and conflict-affected areas.

A major conundrum facing the international human rights system is how to translate international standards into specific local contexts. Many scholars have pointed out that acceptance of human rights treaties by states can have multiple functions and that it does not necessarily (or even usually) lead to a better human rights-respecting performance. For example, countries may sign onto treaties to attract aid funding, or to buy some international respectability, and they have little incentive to actually fulfil their international commitments.

In Burma’s case, it ratified the ILO’s 1930 Forced Labour Convention in 1955, during its brief parliamentary democracy after independence. It is intriguing that it has not sought to repudiate (or in treaty language ‘denounce’) that commitment (although Richard chronicles some serious threats to do so) leaving a chink in Burma’s anti-international armour. Burma has also accepted the Convention on the Rights of the Child in 1991 and the Convention on the Elimination of All Forms of Discrimination against Women in 1997.

Of course, there are many techniques that can be deployed to undermine international obligations; for example refusing the international community access to potential complainants; or simply ignoring the views of international agencies or committees, or marginalising them (a technique in which Australia has developed some skills). My colleague, Valerie Braithwaite, has elaborated the idea of ‘motivational postures’ in the context of taxation regimes, which I think is very helpful in this context. Her work extends sociologist Robert Merton’s work on responses to authority. John Braithwaite et al have also used the concept of motivational postures in analysing peacebuilding in Indonesia. The postures Val Braithwaite identifies are: disengagement (the rejection of the legitimacy of rules); resistance (a challenge to rules, but acceptance of the legitimacy of authority); capitulation (grudging compliance, but with no acceptance of the purpose of the rules); and commitment (believing in and actively pursuing the goals of regulation). Commitment is a situation in which self-regulation is most likely to work. On this analysis, Burma can be seen as a disengaged state, one that rejects the legitimacy of international legal systems and is thus the hardest to move to a posture of compliance and commitment.

The book offers a close study of the way that an international organisation can work productively, if fitfully, with disengaged states: and in particular how the ILO can engage with repressive governments. Richard Horsey shows that what is required is a carefully calibrated mixture of effective pressure and what he terms ‘relentless engagement’. He makes the important point that, although much western rhetoric is devoted to schemes for punishment of human rights offenders (for example through sanctions, or isolation, or denunciation), a much more significant and fruitful step is rather to work out how to achieve changes in such a state’s behaviour through what is often called ‘principled engagement’.

A moving aspect of the book is the stories of the lives and suffering of Burmese caught up in forced labour. I also found fascinating the autobiographical parts of the book where Richard describes his own involvement in forced labour cases. His account in chapter 6 of what he calls the ILO’s annus horribilis in Burma, 2005, is particularly gripping. This was the year when a change in leadership saw the ILO’s main interlocutors in Burma replaced by much harder line figures.

Richard tells the story of a failed high level ILO mission to Burma, of multiple levels of contact with the hostile authorities, of personal pressure on him (including threatening letters and being described to participants in public course on diplomacy as a person to be avoided: The Foreign Minister said ‘If you see [Richard], cross to the other side of the street’).

The recovery from this low point in relations with the ILO is fascinating, a combination of changes in negotiating partners, international pressure, including the prospect of the ILO seeking an advisory opinion on forced labour in Burma from the ICJ, and bi lateral pressure from China

There is, as Richard acknowledges, a long way still to go. This is not a book with a happy ending. Indeed in a report issued last year, the ILO observed that in 2009 there had been no prosecutions by the Burmese authorities for forced labour as a result of complaints received and investigated by the ILO.

Nick Cheesman has also pointed out that the ILO is very careful (too careful in Nick’s view) to remain within the accepted parameters of legitimate complaint in Burma, for example by suggesting that the Burmese government itself does not bear responsibility for breaches of ILO standards which are presented as the fault of recalcitrant local authorities. Nick has also documented cases where lawyers who have collaborated with the ILO on forced labour cases have lost their licenses and even been imprisoned, although the ILO has been able to bring pressure to have some of these lawyers released.

Richard’s book ends with a very useful set of ‘lessons learned’ from the ILO experience in Burma. He argues that international engagement in such a context can be productive, but that it must proceed in slow, incremental stages. This requires first, enough pressure to get the regime to move on forced labour; and second, detailed, painstaking negotiations to identify incremental steps that the government was willing to take and that would be credible to the ILO and its constituents.

These lessons are equally applicable to other human rights treaty regimes in other countries, and not only those that are seen as pariahs; indeed it struck me that a similar combination of meaningful pressure and consistent engagement could be valuable in Australia in relation to its obligations under the Refugee Convention.

So, I am delighted to congratulate Richard on his fine work and launch his book and wish it a wide readership across the globe. Frank Brennan tells a good story about the wonderful anthropologist, Greg Dening. He once told Frank — ‘You don’t launch a book, you open it’. So, let me rephrase – I am delighted to open this book today in your company.