CHAPTER 3: KEY PROVISIONS OF INTERNATIO NAL DOCUMENTS
3.1 FORCED LABOUR
Stateless people do not enjoy the safety and security of a work conditions or environment.
They are forced to work in dangerous, dirty and difficult jobs, they are subjected to physical and verbal abuse and violence, racism discrimination, degrading living conditions and pitiful salaries. They face restrictions in obtaining lawful employment.
109Waas. op. cit.
IIOQrounds ar~ "national security. public safety or the economic well-being of the country,
for the prevention of disorder or crime. for the protection of health or morals. or tor the prot~ction of tht! rights and lre"doms or others ...
They are also not allowed to work in certain fields. 111 This forces them to seek employment in an informal arena which causes them to be marginalised and vulnerable. 112
Under the 1926 Slavery Convention, 1930 Forced Labour Convention and the 1950 Abolition of Forced Labour Convention, forced labour is an international crime. Myanmar is a signatory of the first two conventions. Article 1(1) of the 1926 Slavery Convention shows that forced labour is seen as a form of slavery as slavery entails ownership and control over an individual. Article 5 shows that the Convention is focused on preventing forced labour but rather on preventing forced labour that leads to slavery. 113
In the Forced Labour Convention 1930, the definition of forced labour is given in Article 2(1) and Article 2(2) go on to say that government authorities can demand its citizens to perform forced labour if it is for compulsory military service, work and services forming part of an individual's normal civil obligations, prison labour, work or services necessary in cases of emergency and communal services that benefits to the community. In North Arakan, forced labour is exacted for two reasons; firstly, to sustain, maintain and build the infrastructure of the central authorities and their agencies; and to expose ethnic minority groups to extreme hardship and oppression. This is contrary to international law.
Supporting this is Article 4 from the UDHR. It is clear from the travaux preparatoires that this article was aimed to protect situations of forced labour.114
IIIWaas. Laura Van. ·'Nationality man~rs: Statdessness under International Law··. School o.fHuman R1ghts Research Senes, 29: 5 Jun~ 20 12. http://amo.uvt.nVshow.cgi?fid= 113179
"'Waas. /oc. ell.
IIJ Slavery Convention 1926
11-1 R~port of the Working Group on the Declaration of the S~cond Session of the Commission on Human Rights. UN Doc.
E,CN.4,57. 1947. 8
Article 8(1) and Article 8(2) of the ICCPR address slavery with a provision addressing forced labour. 115 By categorising forced labour as a form of enslavement, it also entails that forced labour is a crime against humanity as provided by Article 7(l)(c) of the Rome Statute.
The Nuremberg Tribunal Charter recognised enslavement with deportation to forced labour (also known as slave labour) as a war crime under Article 6(b). However, there is no clear definition provided by the tribunal as to what constitutes forced labour. The Control Council cases reiterate that forced labour is a form of enslavement but like the Tokyo Tribunal it does not give a clear explanation of parameters or customary elements of this.116 In the Kunarac case presided by the Yugoslav Tribunal, forced labour was defined as a form of enslavement under the 1996 Draft Code ofCrimes Against the Peace and Security of Mankind and that it violated internationallaw.117
The 1954 Convention has three provisions that regulate the right to work. Article 17 states that lawfully residing stateless people, like other aliens, should be allowed to have a paying employment.118 Again, this is a right to be enjoyed by those lawfully residing in the country and they are grouped together with other aliens although their circumstances and needs are different. As a result, this provision does no more than to ensure that stateless people are to be treated like other aliens and in accordance with the general rule of Article 17 despite the second paragraph asking member states to give "sympathetic consideration" to those seeking employment. The member states should only deny a
'".-\rticle 8(3)(a) states that "[n]o shall b~ required to preform forced or compulsory labour·• while Article 8(3)(b) and Article 8(3)(c)(i)-(iv) have the same exceptions to thtsntle wt:tch are snmlar to Arttc~~ 2(2) of the: Forced Labour C~nv~ntion 1930.
tt6United States v. Pohl eta/., US Tnbunal sttttng at Nurc:mbc:rg. Judgm~nt ot 3 November 1947. TWC V. 9)8-1163: 'Slavery may .:xist even without tortur.:. Slaves may be well fed, well clothed. and comfortably housed. but they are still slaves if without lawful process thc:y are dc:prived of their freedom by forcdul restraint.. We: •;1ight ~liminate all proof of ill-treatment. overlook the starvation. beatings and other barbarous acts. but the adtnttt~d fact ot slavery-compu!SOIJI uncompensated labour- would still remain'.
"'Prosecutor v. Kunarac eta/ .. (Trial .Judgm~nt) IT-96-23-T & IT-96-2311-T (22 February 2001) at para. 537
118Waas. op. Cil.
request for employment with good reasons. There is a lack of force in this provision and there is no good reason why this right should only benefit those who are lawfully residing in the country. This would allow the stateless people to survive while they await refoulement and proves less burdensome on the host country's finances. 119 In contrast, the 1951 Convention guarantees a high standard for refugees as their right to seek in paying employment is likened to the nationals of the country and not ·aliens. This right was not enshrined in the 1954 Convention thus leaving it weak and with a minimalist commitment at the lowest common denominator. By equating stateless people with non-nationals, it gives stateless people the lowest standard of treatment. It decreases the value of the 1954 Convention in regards to ensuring the right to work as well as the importance given to the plight ofthe stateless people by international law. This same weak and low protection is echoed in the other two articles on employment (the second, self-employment and the third, the right to work within the contact of liberal professions). As far as the 1954 Convention is concerned, it makes little difference whether the stateless person is a professional, in a paying job or self-employed for the treatment is the same.
For those who have successfully found employment, Article 24 plays the role in ensuring that lawfully residing stateless people should be treated like nationals. 120
It is a rather irregular that only once a stateless person's residential rights are lawfully recognised and he has attained employment, can he enjoy the same working conditions as citizens. This creates room for mistreatment as by withholding lawful residential recognition, this prevents stateless people from seeking employment. It is also confusing as to why the right to work is lower than the right to proper working conditions.
119Waas, Laura Van. ··Nationality matt~rs: Statel~ssn~ss under lnt~rnational La1 ··.School of !-Iuman R1ghts Research Senes. 29: 5
June 2012. http://arno.uvt.nVshow.cgi?fid=113179' . . . .
120Jn relation to r~mun~ration. working hours. ov~rt1111e arrangements. la~d leaw. r~stnct10ns on workmg trom hom.:. minimum agl) ol" cmploym~nt. apprenti..:eship and training, work lor women and young people <Uld Lh~ bene! its of ..:olle..:Livc bargaining.
In a human rights framework, the International Labour Organisation (ILO) has produced 187 conventions on work-related affairs. However, central to international human rights law is the International Covenant on Economic, Social and Cultural Rights. Article 6 provides for the right to work while Article 7 governs work-related rights.121 The most noteworthy factor is like the freedom of movement, these two protections are available to everyone, including stateless people. Similar provisions are encapsulated by the American Convention on Human Rights read together with Article 34, paragraph g of the Charter of the Organisation of American States, Articles 6 and 7 of the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights and Article 15 ofthe African Charter on Human and Peoples' Rights.
The ESC Committee states that the underlying principle of all these provisions is non-discrimination. Although the core obligation is for states to ensure that non-nationals should include access to employment specifically for marginalised communities like the Rohinoya the Committee seems to allow States to favour their citizens above non-o ,
h I. . " bl , 122
nationals unless sue po tctes are unreasona e .
The Inter-American Court ofHuman Rights has held that labour rights must be respected. Though the provisions of the international provisions are directed at everyone, the best chance for stateless people to be protected is to firstly gain lawful entry into the country. The ESC Committee may have address on occasion the plight of the non-nationals and the Committee on the Elimination of Racial Discrimination does call for "enjoyment of economic, social and cultural rights by non-citizens" in the area of employment, the scope of protection and prevention of abuse is still too narrow and uncertain to be regarded as a
121Waas. op. cit.
moent. John. Research Paper on che Socwl and Economic R1ghts o[Non-Nauonals m £11rope.
Brussds: 1998. 45.
strong wall for the Rohingya to rely on. Additionally, Article 2 paragraph 3 of the ICESCR provides for developing countries to tum down non-nationals when they ask for work to give more opportunities to their citizens. This bodes ill for the Rohingya for Myanmar, and the countries they flee to; Thailand, Malaysia, Indonesia and Bangladesh are all developing countries. This only worsens the marginalisation and weakens the Rohingya. And in the human rights context too the provision regulating working conditions seem stronger where like the 1954 Convention; there is a guarantee which is equally given to citizens.
The Rohingya have been subjected to forced labour for at least two decades. The forced labour that the Burmese government exact on the Rohingya falls squarely under the definition in the Forced Labour Convention 1930. The policies implemented by the government show that there is a specific policy to force the Rohingya into working for them.