7 The International Labor Organization

Key facts
Headquarters:
Geneva
Members:
185 countries
Mandate:
to recommend to members regulations for the safety and health of
workers.
Key structure:
plenary organization includes representatives of government, unions,
and employers and issues recommendations (“conventions”) to states.
Key obligations:
member states must consider ILO conventions for adoption, but are not
required to adopt them.
Enforcement:
the Governing Body can recommend punishments against countries that
fail in their obligations under the conventions.
Key legal clauses of the ILO Constitution:
Article 19(2) on voting for new conventions and recommendations.
Article 19(5) on states’ obligations to consider ratifying a convention.
Article 19(6) on states’ obligations toward recommendations.
Article 22 on states’ obligations to report each year on each convention
it has ratified.
Article 33 on enforcement.
 It is a perpetual dilemma in market capitalism that firms face insatiable
incentives to reduce their costs in order to increase their profits. A capitalist
inter-state system enhances these incentives. The International Labor
Organization was created during an earlier period of “globalization” to limit
the damage this pressure can do to the working conditions of citizens in the
international economy. The organization produces labor regulations which
member governments are encouraged to adopt as domestic laws. Its structure
and authority are highly peculiar, reflecting the highly political nature of its
subject matter. It includes representatives of labor and employer groups from
each member country alongside representatives of their governments. It also
has no authority to impose rules on members, relying instead on the process
of deliberation to generate rules that will be appealing to states’ self-interests.

At the end of World War I, the architects of the Versailles Treaty believed
that future wars could arise from economic inequalities between states or
from hyper-competitive race-to-the-bottom among national labor regulations.
They felt there was a connection between the mistreatment of workers
domestically and the tendency for international conflict, via either domestic
social unrest or friction with trading partners. This link between labor
standards and international peace and prosperity was widely accepted as
conventional wisdom in 1919 and it has returned to the forefront of thinking
about the effects of globalization in recent years. The issues at the heart of the
International Labor Organization are very current again today. Both the
contemporary and historical versions of this thinking are based on the same
insight: that global capitalism produces an incentive for exporting countries
to lower their labor standards to gain a competitive advantage in international
trade, and this incentive (when allowed to operate unchecked) is bad for
workers, bad for social stability, and bad for international peace and order.

This chapter examines the structure of the ILO, which includes non-state
actors in an unprecedented way, and the unique system it creates by which
members can choose on a case-by-case basis which decisions of the
organization they will accept as binding. It uses the rules against forced labor
to present a case study of Myanmar/Burma that illustrates both the power of
and the gaps in this enforcement system.
 The International Labor Organization was created at the Versailles peace
conference in 1919 and was given the mandate of coordinating labor
standards across countries. This was thought at the time to be an important
contribution both to the dignity and rights of working people around the
world and to the long-term peace and stability of the post-war order. Despite,
or perhaps because of, the dramatic process of the globalization of
production, the ILO’s goals and operation remain largely the same today as
they were almost 100 years ago, and so do the concerns regarding the
destabilizing possibilities of unlimited competition.

There are several reasons to study the International Labor Organization in

comparison with other international organizations. First, it remains the central
international body responsible for encouraging civilized labor laws across a
nearly global membership. It is therefore a potentially useful instrument to be
used by the modern advocates of internationally mandated labor standards.
That it has received little attention by those looking to institutionalize
common standards suggests it may remain an underutilized resource. The
second reason is that it contains a unique and interesting means of reconciling
IO authority with state sovereignty. It makes rules that only become binding
on states when the states explicitly consent to each rule. In the terms of this
book, therefore, it is a very revealing case. It uses a very different method to
achieve compliance than any of our other institutions, but it makes a
significant sacrifice in the ambition of its legal rules in order to gain a high
rate of compliance. Finally, it is unique among international organizations in
allowing non-state actors such as business groups and labor unions to
participate as official members of national delegations. This unusual structure
was designed in 1919 and today it looks prescient given the dramatic shift in
global power from government to firms, non-governmental organizations
(NGOs), and other kinds of non-state actors. Many international
organizations are seeking ways to incorporate these players into their
processes, and to manage the results in ways that serve the organization’s
interests, and the ILO shows one way that it can be done. Thus, in both its
structure and its substantive work, the ILO straddles the line between state
power and globalization to a degree impossible to imagine for the strictly
state-centric organizations in this book such as the United Nations and the
International Court of Justice.
 The ILO is composed of three parts: an assembly of delegates from all
member states, known as the International Labor Conference (ILC); a smaller
assembly of fifty-six of those delegates, known as the Governing Body,
which operates as the executive committee of the ILO; and a secretariat,
known as the International Labor Office (the Office), to provide bureaucratic
support to the other two bodies. The ILC meets once a year to draft new labor
standards, set the organization’s budget and finances, admit new member
states, and provide a general forum for the discussion of labor issues. The
Governing Body meets more frequently and provides much of the monitoring
of existing labor conventions. The delegates to both the ILC and the
Governing Body include representatives of governments as well as
representatives from labor and employer groups. Each national delegation in
the ILC has four people in it, two from the national government and one each
from labor and employer groups. Most of the fifty-six members of the
Governing Body are elected for three-year terms from out of the ILC,
fourteen from among the labor delegates, fourteen from the employers, and
the rest from the governments. Ten seats in the Body are not elected, and are
instead reserved for the government delegates of the ten states “of chief
industrial importance” in the world (Art. 7(2)).1 One of the Governing
Body’s functions is to figure out which are the ten states of chief industrial
importance. The flexibility that this gives is in marked contrast to the rigid
definition in the United Nations Charter of the five permanent members of
the UN Security Council. Where the UN Charter codified the “Big Five”
from 1945, leading to intense institutional problems as international power
has shifted since then, the ILO Constitution avoids assigning property rights
over these ten permanent seats on its executive body. The political fighting
over seats at the ILO is therefore structured around the Governing Body’s
formula for deciding which economies should be included, while the fights
over the UN Security Council take place in diplomatic campaigns to revise
the Charter.

The tripartite delegations of the ILO are not copied in any other major
international organization, and indeed even within the ILO their existence is
limited to the deliberative processes in the ILC and the Governing Body. This
opens up an intriguing potential for tension in the organization: while labor
and employer representatives have a voice and a vote in formulating new
labor standards, those standards create obligations only on the governments
of member states. In cases where the labor or employer groups are really
independent of the government, their interests can shape the outputs of the
ILO. In general, though, governments exert a great deal of influence over
which labor and employer groups are allowed to participate in the ILO.

Despite this innovative representation structure, the ILO’s legal powers are
in fact quite conventional in the sense that the obligations that it monitors and
enforces are obligations of states and states alone. The organization’s
Conventions are standard instruments of public international law, binding
only on the nation-states that sign them; they break no new legal or
conceptual ground in terms of creating obligations for non-state actors. As we
consider those obligations in this chapter, as well as the practice of
compliance and the ILO’s powers of enforcement, it is interesting to see how
the tripartism of the organization is absent from the substantive legal outputs
that it produces, and the opening this creates for a possible future where
international law might impinge directly on firms’ treatment of their workers.
Figure 7.1 A meeting of the ILO in 1998 included a demonstration over
child labor. © ILO Photo

Obligations

The substantive work of the ILO comes when it adopts new labor standards.
These come in the form of “Conventions” and “Recommendations” and must
be approved by a two-thirds majority vote in the ILC. The former include
legally binding policy changes that must be made by states and the latter are
merely hortatory. Excerpts of one convention are included below (C.105 on
forced labor). On its own, a newly passed convention (or recommendation)
has no authority or power. It exists in a form that is just like any new
international legal treaty which can be signed and ratified by any country that
chooses to adopt it, but also can be left aside by any state that chooses not to
adopt it. To become legally binding on a state, a new convention must be
adopted and ratified through the normal treaty-ratifying process in the state’s
domestic political institutions.

This second stage in the legal life of the document is crucial: only once it
has been ratified by a state is the convention legally binding on it. States
therefore have an entirely legal way to avoid taking on new obligations as the
ILC passes new conventions. The existing corpus of ILO conventions makes
up a global web of labor standards but it applies to states only in a piecemeal
fashion, depending on which conventions have been formally adopted by
which states. There are 189 conventions in force today, of which eight are
considered by the ILO to be of fundamental importance.2 Of these eight
fundamental conventions, about two-thirds of the ILO’s member states have
adopted all eight.

As a result, member states take on two distinct kinds of obligations by

joining the International Labor Organization. On the one hand, the
Constitution of the ILO includes the general requirements that states make
various kinds of reports to the organization about their labor policies and that
they consider adopting the labor conventions and recommendations passed by
the International Labor Conference. On the other hand, each of those
conventions and recommendations might include specific commitments and
obligations which are binding on states. The procedures, applicability, and
consequences of these two sets of obligations are entirely different from each
other. In what follows, I first examine the general obligations of ILO
members and then turn to consider the specific obligations that arise under
one particularly interesting convention, that on forced labor (C.105). For a
full picture of the obligations that come from the ILO, one would have to
examine each convention in close detail, and consider which countries have
accepted the obligations that it contains.

The primary general commitment of ILO member states is to consider for

ratification all conventions and recommendations adopted by the
International Labor Conference. This is set out in Article 19(5) of the ILO
Constitution, where the language is clear and forceful: “each of the Members
undertakes that it will, within the period of one year at most . . . or if it is
impossible . . . in no case later than 18 months . . . bring the Convention
before the authority or authorities within whose competence the matter lies,
for the enactment of legislation or other action.” (The procedure is the same,
in Article 19(7), for “recommendations.”) The relevant authorities might be
the domestic legislature or executive, or (in a federal system) a sub-national
government such as a province or canton.

Therefore, the primary obligation of members is to consider ratifying the

rules proposed in the conventions. Once the matter has been considered by
the relevant national authorities, one of two things can happen: either the rule
is adopted by these authorities, in which case the state will ratify the
convention, or the authorities will decline to adopt it, in which case the
country incurs no further obligations. To make perfectly clear the limits of
these obligations, Article 19 goes on to say that, apart from bringing the
matter to the attention of the relevant authorities for their consideration, “no
further obligation shall rest upon the Member” if those authorities decline to
adopt the convention.

Thus, whether rejecting or adopting a convention, the ILO Constitution

requires that the state report back to the organization on its decision, along
with either the reasons for declining or the measures it plans to take to
implement it. This is the source of the second component of members’
obligations: to periodically report to the ILO Director-General on their
domestic labor regulations and practices. These reporting requirements
appear in Articles 19(5) and 19(6) of the ILO Constitution, which were added
in an amendment to the Constitution in 1948. These clauses give the
Governing Body the authority to require that states report to it about their
laws and practices in the area covered by the convention. This power is
intriguing because it arises even with respect to conventions that the state has
declined to adopt, and as such it represents a form of power of the ILO over
states who have refused to consent to the convention. Clearly, the power is
only to require reports and information from the state; the ILO does not
compel non-ratifying countries to follow the rules of conventions that they do
not adopt. However, it does mean that with each convention that the
organization creates, it expands the realm of obligation of states by increasing
the reporting that it could require of its members, even those who exercise
their ILO rights to decline to ratify the convention. It is therefore not quite
true to say that by declining to ratify a convention a state avoids all
obligation toward the ILO with respect to that convention.

It is easy to criticize the reporting system on the grounds that there is

nothing in it to discourage platitudes or cheap talk from states. States can, of
course, produce all manner of whitewash to make it look like they are being
responsible citizens of the ILO through their labor laws and practices, and
there are few institutional checks by which their statements might be
challenged. While this may sometimes be a problem, in general such a
criticism underestimates the political importance of states’ public statements.
Even whitewash requires effort on the part of officials, and the bureaucratic
investment that goes into making reports can be useful from the ILO’s
perspective if it means the state is acknowledging that it has responsibilities
to the organization on the subject.

Also, states may find themselves held to account down the road for
statements that they had not thought at the time were particularly serious. Part
of the insight of Margaret Keck and Kathryn Sikkink’s work on the politics
of human rights is that official statements are never cost-free: in the hands of
activists, they often take on great political significance which governments
had not anticipated.3 The potential for what Frank Schimmelfennig and
others have called “rhetorical entrapment” raises a key question about the
ILO’s place in world politics: should we interpret a state’s refusal to be
bound by a convention as evidence of an obligation to give a public and legal
rationale for that refusal, or is refusal simply the absence of obligation? To
the extent that one believes that reasoned public discourse makes up an
important aspect of world politics, these reporting requirements may
themselves be influential levers by which the ILO shapes state policy and the
broader international environment.4

Aside from the general obligations set out in the Constitution, the ILO then
creates new legal obligations by passing conventions that contain specific
requirements for public policy. The convention on forced labor, for instance,
requires that states “take effective measures to secure the immediate and
complete abolition of forced or compulsory labor” (C.105, reproduced in
Appendix 7B). The convention defines the key term (“forced labor”) and then
invites ILO member states to ratify the convention through their domestic
legal systems. The convention on discrimination in employment (C.111) says
that states must “pursue a national policy designed to promote, by methods
appropriate to national conditions and practice, equality of opportunity and
treatment in respect of employment and occupation.” Similar to C.105, C.111
defines the term “discrimination” and attempts to specify what is and is not a
forbidden form of discrimination in employment. It says, for instance, that
the claim of “discrimination” is not available to individuals who are
“justifiably suspected of, or engaged in, activities prejudicial to the security
of the State,” thus carving out a large space for states to use national security
as a justification for what might otherwise look like discrimination. The
convention on forced labor also includes language common to many ILO
conventions regarding their entry into force (Articles 3 and 4), denunciation
(Article 5), and the possibility of a superseding convention (Article 9). These
are now included in all new conventions.

There is some flexibility built in so that states with more strict rules on a
subject are not required by an ILO convention to weaken them. Article 19(8)
says that conventions and recommendations cannot be used to lessen existing
labor regulations that “ensure more favorable conditions to the workers
concerned than those provided for in the Convention or Recommendation.”
In opening this possibility, the ILO system acknowledges the reality that
these are subjects of great national variation, and it is in essence conceding
that it does not provide the last word when it comes to labor regulation.
Rather than insist on uniformity across its membership, it aims to encourage
countries whose standards are considered insufficient to bring them to a
broadly agreed upon minimum, while allowing those that are already higher
to remain as they choose.

Compliance

The International Labor Organization is built around two institutional devices

to encourage compliance by member states: tripartism and voluntarism.
These both represent institutional innovations as compared to all of the other
organizations in this book, and so they merit some attention both for
understanding the ILO and for comparison with how other international
organizations aim for compliance. The ILO is consciously striving for
maximum compliance by states, and so as a general rule whenever there is a
trade-off between stronger substantive regulations on labor conditions and
higher rates of compliance, it chooses to maximize the rate of compliance at
the expense of the substantive content of the laws. This is evident in both the
design of tripartism and the extreme voluntarism of the convention process.

Tripartism: The inclusion of non-governmental delegates should be seen as

an attempt to ensure that when conventions are passed by the ILC they have
already been vetted by important domestic constituencies in each state. They
should therefore be less controversial and more likely to be adopted and
implemented once they are brought back to domestic political institutions for
approval. By building in a formal role for labor and employer representatives,
the ILO internalizes both advocates and potential opponents of new
conventions. It is bargaining that their inclusion will help uncover those new
labor standards that can successfully pass through the various sectoral
interests in domestic politics and emerge as rules that states will actually
comply with.

Voluntarism: The second device is the two-stage approval process for new
conventions, described above. Because states must explicitly consent to each
convention for it to be binding on them, those that are consented to are
presumably likely to be acceptable to the governments. This is a process of
self-selection. The ILO’s internal logic rests on the assumption that states
which strongly disagree with a given standard are free to declare themselves
to be not governed by it. Those who oppose it drop out, and the overall
measured rate of compliance with ILO conventions will be higher than it
would otherwise be. Of course, this relies on measuring only compliance by
states with those conventions they have ratified, and sets aside the behavior
of all those states that refused to accept the obligation in the first place. In
strictly legal terms, this is a reasonable move because states that do not ratify
a treaty are under no obligation to comply with it and therefore cannot be said
to be in violation. But from the broader perspective of spreading labor
standards as widely as possible, this trade-off shows one way in which the
ILO aims low in the pursuit of its objectives. It will accept a lower rate of
adoption by states in order to get a higher rate of compliance by those that do
adopt.

That said, to the extent that there is a “peer pressure” effect motivating
states to adopt conventions that they otherwise do not agree with, then this
logic of self-selection for compliance will not work very well. Do states feel
social pressure to adopt labor standards which they have no intention of
implementing? The ILO clearly believes that inter-state peer pressure is
powerful in some settings, since it is at the heart of the effort to promote the
eight “core” human rights conventions as basic standards of legitimate
conduct. In branding these as something like the markers of civilized
statehood, the ILO hopes that states will see signing them as valuable signals
to others about their legitimacy. If this induces cynical states to ratify these
conventions for public relations reasons without a genuine commitment to
following them, then self-motivated compliance is unlikely to follow. The
enforcement regime in the ILO Constitution, discussed below, would then
become more relevant.

Enforcement

The ILO has some capacity to enforce its conventions against states that have
ratified but not complied with them. These rules are primarily described in
Articles 24, 26, and 33 of the ILO Constitution. The system works on the
basis of complaints about the failure of a member to fulfill its obligations
under a convention. These can be investigated by a committee of member
states from the ILO and may lead to censure or expulsion from the
organization.

Complaints about non-compliance on the part of a state can be submitted to

the ILO by a variety of agents, including worker or employer groups,
member states of the ILO, or the Governing Body itself. This range of
sources for complaints is unusual among international organizations. The
WTO, by contrast, will in general only consider disputes that originate with
states that can claim to have been harmed by another member’s failure to
fulfill its obligations, and the ICJ generally only accepts cases referred to it
by two (or more) states who are party to the dispute. Allowing non-state
actors to submit complaints, and allowing the Governing Body to initiate
complaints, makes the ILO akin to the ICC where the Prosecutor’s Office has
the authority to initiate investigations on its own, relying in some cases on
information supplied by non-governmental organizations or others.

A complaint in the ILO context takes the form of what the ILO calls a
“representation” that a member state has failed to implement an ILO
Convention which that member has accepted. This is defined in Articles 24
and 26. Once such a claim is made, the state in question is usually given an
opportunity to respond (though in Article 26 it is not mandatory that the
target be given a chance to answer the charges) and then the Governing Body
makes a judgment about whether the matter should be further investigated by
a committee of the ILC known as a “Commission of Inquiry.”

These investigations are governed by Article 28, which says that the
Commission “shall prepare a report embodying its findings on all questions
of fact . . . and containing such recommendations as it may think proper as to
the steps which should be taken” and the report is then made public and the
parties to the dispute are asked to respond (Art. 29). If the report substantiates
a complaint against a member, that state can be asked to change its policies,
and its behavior is then monitored by the Governing Body and ultimately by
the general membership of the ILO sitting in the International Labor
Conference. The Governing Body can “recommend to the Conference such
action as it may deem wise and expedient to secure compliance” with the
report’s recommendations. This process has been used only once, as we shall
see in the Myanmar case below.

Despite this enforcement structure, the logic of the ILO in general rests on
encouraging self-motivated compliance rather than centralized coercive
enforcement. The ILO’s history of enforcement is thin. The working premise
behind the organization is that states can be induced to improve their
conditions for workers by recognizing their self-interests and by the subtle
play of international norms and adverse publicity to sway those who fall
below the standards. This is entirely different than a coercive model in which
an international organization strives to force recalcitrant states to adopt
positions to which they object. The coercive model sets up a power struggle
between the organization and its members and presumes that progress will
come through the process of confrontation. International organizations are, in
general, poorly equipped to win such direct contests of political power with
their members, and the ILO has tried it only once in its history (Myanmar),
with limited success.

Figure 7.2 A boy working in a shoe factory in the Philippines, 1969. ©

Bettmann/Corbis

Power struggles between international organizations and their members are

not unheard of, and it is far from certain that the states, even powerful ones,
always win these contests – each organization in this book has had some
measure of success forcing its members to change their policies. But the ILO
helps to show that compliance and enforcement are only loosely connected
for international organizations: compliance often comes without enforcement,
and enforcement tools are not often put to use. The ILO is designed from the
start to avoid direct confrontations with members, and so most of its useful
work takes place away from the spotlight of hot disputes between its rules
and its members.

As a result, finding empirical evidence that the ILO improves labor

standards is not easy. This is not because it is necessarily ineffectual, but
largely because the process through which it influences states is mixed with
so many other political influences that it is very difficult to trace the
independent effect of the ILO. It is true, for instance, that countries that have
ratified the ILO conventions on occupational safety have lower rates of
accidental death in the workplace.5 But this correlation can only form the
beginning, rather than the end, of a discussion about the ILO’s contribution.
Is the correlation because signing ILO conventions leads states to enact
stricter workplace safety rules? Or is it because those with strict workplace
safety rules are happy to accept ILO standards that they already meet? More
generally, do states actually change their policies as a result of new ILO
standards, in ways that they would not have done without the standard? This
is, ultimately, a more concrete version of a big question: (how) does the ILO
matter in the world?

CASE: Myanmar

The long-running dispute between the ILO and Myanmar shows the working
of its enforcement system, in both its strengths and weaknesses. The military
government of Myanmar has been the target of repeated ILO enforcement
action since the mid-1990s. The dispute stems from the government’s
practice of using forced labor despite having signed ILO Convention 29
which outlaws “the use of forced or compulsory labor in all its forms.” The
government of Myanmar, also known as Burma, is a military dictatorship that
has for many years relied on “the basic tactics of violence, censorship, fear,
poverty, privation, and isolation to remain in power.”6 It commonly relies on
forced labor both as a means of punishment and as a source of workers for
government projects.

The Forced Labor Convention (C.29) is one of the eight conventions which
the ILO considers to make up the set of fundamental human rights. It was
adopted in 1930 and was signed by Myanmar in 1955. Myanmar at the time
was known as the Union of Burma and had been independent from British
colonial control since 1948. After a coup in 1962, Myanmar has spent
decades sinking further into an oppressive military dictatorship and, as a
result, into extreme poverty. However, under the international law of state
succession, the treaties and other obligations entered into by a predecessor
state remain in force for the successor state, and so the Union of Burma’s
commitment to suppressing forced labor in 1955 remains as a treaty
obligation of the current military government. Myanmar has never adopted
Convention 105 (1957, Appendix 7B below), which includes a ban on forced
labor as a political tool, and so it is not bound by the more recent rules
contained in that convention.

However, Myanmar continues to be obligated to follow Convention 29,

and the exact language of the Convention is therefore crucial to identifying its
obligations and assessing its compliance and any enforcement action by the
ILO. The 1930 Convention on Forced Labor says:

Art. 1(1) Each member of the International Labor Organization which

ratifies this Convention undertakes to suppress the use of forced or
compulsory labor in all its forms within the shortest possible period.

Art. 2(1) For the purposes of this Convention the term forced or
compulsory labor shall mean all work or service which is exacted from
any person under the menace of any penalty and for which the said
person has not offered himself voluntarily.

Art. 2(2) Nevertheless, for the purposes of this Convention, the term
forced or compulsory labor shall not include–

(a) any work or service exacted in virtue of compulsory military

service laws for work of a purely military character;
(b) any work or service which forms part of the normal civic
obligations of the citizens of a fully self-governing country;
(c) any work or service exacted from any person as a consequence
of a conviction in a court of law, provided that the said work or
service is carried out under the supervision and control of a
public authority and that the said person is not hired to or placed
 at the disposal of private individuals, companies or associations;
(d) any work or service exacted in cases of emergency, that is to
say, in the event of war or of a calamity or threatened calamity
. . .;
(e) minor communal services of a kind which, being performed by
the members of the community in the direct interest of the said
community, can therefore be considered as normal civic
obligations incumbent upon the members of the community,
provided that the members of the community or their direct
representatives shall have the right to be consulted in regard to
the need for such services.

The enforcement action against Myanmar began in 1996 when a group of

delegates in the ILO representing workers submitted a complaint about
Myanmar’s compliance with the Convention. Their complaint was based on
many years’ worth of criticism of Myanmar’s practices by ILO groups and
others, and it represented the first use of the formal complaints procedure in
relation to Myanmar. Article 26(1) of the ILO Constitution allows any
country that is a member to complain “if it is not satisfied that any other
Member is securing the effective observance of any Convention which both
have ratified.” Article 26 allows the Governing Body to create a Commission
of Inquiry to investigate the complaint if it feels there are grounds to do so,
and the Commission is charged with completing a report that may include
recommendations for changes to the country’s policies or practices.

This process was carried out vis-à-vis Myanmar in the 1990s, and the
Commission of Inquiry issued a report in 1998 that found that there was
“widespread and systematic” use of forced labor in the country in violation of
Convention 29.7 It said that “Myanmar authorities, including the local and
regional administration, the military and various militias, forced the
population of Myanmar to carry out a wide range of tasks. Labor was
extracted from men, women and children, some of a very young age.
Workers were not paid or compensated in any way for providing their labor,
other than in exceptional circumstances, and were commonly subjected to
various forms of verbal and physical abuse including rape, torture and
killing.”8 It found that this forced labor was widely used across all aspects of
society controlled by the government, including to support the military, for
infrastructure projects, and to manufacture goods for export. It estimated that
between 1992 and 1995 alone, two million people had been forced to work
on road, bridge, and railway construction projects without pay.9 The military
work included walking in minefields to ensure a path for soldiers.10 Village
leaders were required to maintain information about all villagers to make it
easier to find people to put to work, and each household would generally be
required to send a member, even where it meant sending children, the elderly,
and pregnant women. The village leader would be the first to be punished if
recruits failed to appear, though recruits and their families were often
terrorized as well with torture, rape, and murder. People with money could
generally pay a bribe to avoid being recruited. The basic legal question for
the Commission of Inquiry was whether the government had lived up to its
specific commitments under Convention 29.

The Commission explored both the laws of Myanmar and its practices.
Two laws, from 1908 and 1909, required that citizens be available to assist
the military as porters, guides, and general labor, without their consent and
without pay. These clearly violated the obligations under the Convention.
Moreover, the practice of forced labor was far more extensive and systematic
than even these laws allowed. The Commission found a series of government
memos from 1995 that prohibited unpaid labor in national development
projects, but the Commission appears to have given them little credence, in
part because they were labeled “secret” and so had never been communicated
with local officials and in part because there was no evidence that they had
been applied in practice.11 They also found that forced labor had been made
illegal under Myanmar’s national laws, which is an important part of the
state’s obligations in Article 1 of the Forced Labor Convention, but again the
Commission saw no evidence that this was ever followed in practice. All of
this information came at the initiative of the Commission as the government
of Myanmar never chose to participate in the Commission’s work. Overall,
the final report amounted to a detailed indictment of the national practices of
Myanmar, and a wholesale critique of its underperformance with respect to
Convention 29 in particular and human rights in general. It therefore provides
a usefully extreme case of non-compliance with which to assess the
enforcement capacity of the ILO and of international organizations more
broadly.

The Commission’s report presented several demands to the Myanmar

government. These included changing the 1908 and 1909 laws so that they
complied with the Convention, ending the practice of forced labor, and fully
enforcing the existing laws against forced labor. Under the terms of a
Commission of Inquiry, as set out in Article 29 of the ILO Constitution, the
Commission has the power to issue “recommendations as it may think
proper” to remedy any non-compliance that it finds. The formal authority of
the Commission is therefore ultimately to recommend, rather than to decide
or demand. It cannot directly compel states to change their practices.
However, the language of the Myanmar report was surprisingly forceful and
blurred the distinction between a demand and a recommendation: it said “the
recommendations made by the Commission require action by the
Government of Myanmar without delay.” It also made a more general
critique of Myanmar’s system of government, not typical of language used in
inter-state organizations. It said “The Commission considers that the
impunity with which government officials, in particular the military, treat the
civilian population as an unlimited pool of unpaid forced laborers and
servants at their disposal is part of a political system built on the use of force
and intimidation to deny the people of Myanmar democracy and the rule of
law . . . The establishment of a government freely chosen by the people and
the submission of all public authorities to the rule of law are, in practice,
indispensable prerequisites for the suppression of forced labor in
Myanmar.”12 In other words, the Commission seemed to believe that the
government was unlikely to change its practices, and that the people of
Myanmar would not be spared further forced labor until their military
dictators were overthrown. It is strikingly unusual for an international
organization to criticize a member’s system of government in such a pointed
and forceful manner.

Article 33 of the ILO Constitution says that the Governing Body can
recommend “such action as it may deem wise and expedient to secure
compliance” with the recommendations of a Commission of Inquiry. The
Myanmar case has been tangled up in Article 33 since the Commission issued
its report in 1998. Looking for an effective strategy to change the
government’s practice, and with the open-ended language of Article 33 in
hand, the ILO has chosen to negotiate with the Myanmar government over
the forced labor issue, rather than to punish or expel it. After another scathing
ILO report in 2001, the two parties agreed in 2002 that the ILO should install
a “liaison officer” in the country to “assist the government to ensure the
prompt and effective elimination of forced labor.” When this person found
himself marginalized in the country and learned that citizens lodging
complaints were being arrested, a new agreement was negotiated that was
meant to guarantee the safety of people making complaints. By 2008, the
situation had not improved.13 A new “joint strategy for the elimination of
forced labor” was agreed to between the ILO and the government in 2011
after the regime began a series of quite fundamental changes in its mode of
governance. There are indications that the conditions for labor in Myanmar
are improving, and consequently that the relationship between the ILO and
Myanmar is becoming less antagonistic. The organization in 2012 allowed
Myanmar to return to some of the regular business of the ILC, from which it
had long been suspended.

When faced with intransigent non-compliance, it is not clear what the

ILO’s options are. Its authority under Article 33 is extremely broad but
unfocused in the sense that there are few valued goods or privileges granted
to members by the ILO Constitution which could be taken away as
punishment. As the ILO has no power over trade policy or tariffs or
sanctions, there is no channel by which it could directly impose economic or
military sanctions against a recalcitrant member state. The most it could do is
expel the country from the organization. Short of that, it has generally opted
to continue to negotiate with governments such as Myanmar while working
to publicize its non-compliance in the hopes that other states, other IOs, and
NGOs might add their influence in the direction of compliance.

The Myanmar case shows the limits of an international organization when

faced with a member that reveals itself to be entirely unwilling to fulfill its
obligations. Having exhausted its instruments of enforcement, the ILO is left
struggling to find a means by which it can continue to include Myanmar
among its members while maintaining the integrity of its core mission.
Conclusion

The ILO is an important player in the world of international labor standards,

even though it has never been constituted in such a way that it can enforce
standards on recalcitrant states. Rather, it has two somewhat more subtle
roles to play. First, it helps to create and define an international consensus on
the baseline regulations for aspects of labor and employment. Second, it
provides a forum in which complaints against states can resonate and be
amplified. Together, these two mean that the ILO provides an opportunity for
states to make public and legal commitments regarding their labor laws and a
mechanism by which they might be held to account for them.

The obligations that the ILO imposes on members are relatively strong and
unambiguous compared with those of many other international organizations.
There are few ways to dodge out of the duties imposed by the ILO and, in the
sense of having a clear mandate of legal authority that trumps the sovereignty
of its members, the organization is among the most authoritative in world
politics. However, its authority extends only to the procedural matters of
requiring that members consider adopting certain labor standards; it does not
require that they actually adopt anything. The net result is either a very strong
or a very weak organization depending on whether one is looking at the legal
superiority of the organization above its members or at the organization’s
substantive power over actual labor conditions. The ILO is in absolute
control of an instrument of governance which is not actually attached to the
broader machine of government.

The peculiar strong-yet-weak legal and political make-up of the ILO

reappears in various ways, as when it comes to deciding what goes into a
convention in the first place. This reflects the fact that the ILO operates in
highly politicized terrain and deals in matters of great domestic importance to
states. Few states are seriously willing to delegate to an international agency
the power to legislate domestic policies relating to industrial or labor policy.
These are subjects which governments have shown a strong interest in
managing autonomously. They have, however, been willing to promise to
consider changes to their policies, and the ILO’s role in practice has come to
be as a centralized location for the discussion and suggestion of these
changes. Rather than directly challenge members’ sovereignty over domestic
policies, the ILO has chosen a path in which it codifies policies which
members already want to adopt. This greatly reduces the potential for conflict
between the organization and its members, but at the cost of greatly reducing
the ambition of the organization with respect to labor policies. Whether this
trade-off is worth it is a matter of judgment.

Most studies of international labor standards focus on the worst failings of

and abuses by states, and are motivated by revealing how governments use
their power to deny basic rights to their citizens. This attention is important,
but it should also be complemented by attention to how those rights and
minimum standards have come into being. Here, the ILO is a very important
actor. Through its process of deliberation and tripartite voting, the ILO
provides a mechanism for sifting through a range of possible labor standards
and model laws and identifying those that can carry something close to an
international consensus. This consensus need not be total, as we have seen
that the peculiar system of obligations that the ILO creates for states allows
for individual states to opt out of any proposed convention, but conventions
do not proceed through the organization unless they have broad support that
extends beyond the most activist states. Its products are therefore rarely at the
leading edge of high standards, but they often represent a “reasonable
middle” below which state policies attract a natural suspicion.

The process of deliberation, ratification, and reporting provides states with

many moments where they are expected to make official public statements
about their own labor regulation. These statements may be in favor of a new
convention or opposed to it, but either way they add up to a body of public
commitments which the government may have a hard time disavowing in the
future. By requiring that states make public defense of their labor standards,
the processes in and around the ILO give other governments, NGOs, and
their own citizens political resources when disputes arise. Governments are
generally highly averse to being seen as hypocrites, and one of the important
functions of the ILO is to provide a place in which government practice can
be publicly compared to government rhetoric, at least with respect to the
matters specifically contained in conventions. This accountability rarely rises