5 Restrictive measures against the regime
in Burma
| (31405)
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| Draft to amend Council Regulation 194/2008 imposing restrictive measures in respect of Burma
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| Legal base | Article 215 TFEU; QMV
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 11 March 2010
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| Previous Committee Report | None; but see (30854) —: HC 19-xxvi (2008-09), chapter 17 (10 September 2009); (30542)—: HC 19-xiv (2009-09), chapter 12 (22 April 2009); (29621) —: HC 16-xix (2007-08), chapter 9 (23 April 2008); (29368) 5401/08: HC 16-xi (2007-08), chapter 9 (6 February 2008); and (29083) —: HC 16-ii (2007-08), chapter 21 (14 November 2007)
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| To be discussed in Council | To be determined
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| Committee's assessment | Politically important
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| Committee's decision | Cleared, but further information requested
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Background
5.1 Starting with Common Position 1996/635/CFSP, the EU has adapted
and strengthened its sanctions regime against Burma over the last
ten years in response to deteriorating circumstances on the ground
and the continuing failure by the government of Burma to make
progress on human rights and national reconciliation. In line
with EU sanctions policy the EU has worked to achieve positive
change in Burma by placing pressure on those responsible for its
policies, whilst minimising any adverse impact on the general
population.
5.2 In 2006, EU Common Position 2006/340/CFSP imposed
the following measures:
— a
visa ban and assets freeze against named members of the military
regime, the military and security forces, the military regime's
economic interests and other individuals, groups, undertakings
or entities associated with the military regime and their families;
— a visa ban against serving members of
the military of the rank of Brigadier-General and above;
— a comprehensive embargo on arms and equipment
that might be used for internal repression and ban on military
personnel being attached to diplomatic representations in and
from Burma;
— a ban on high-level bilateral government
visits at the level of Political Director and above;
— a suspension of most non-humanitarian
aid;
— prohibition on EU companies making finance
available to, or extending participation in, named Burmese state-owned
companies, their joint ventures and subsidiaries.
5.3 In view of further deterioration of the situation
in Burma, the EU adopted Common Position 2007/750/CFSP on 19 November
2007 (which we cleared at our meeting on 14 November 2007). This
provided for new restrictive measures concerning certain imports
from, exports to and investments in Burma/Myanmar, targeting its
timber and extractive industries, which provide sources of revenue
for the military regime. It also broadened the scope of the existing
restrictions on investment by applying them also in respect of
investment in enterprises owned or controlled by persons or entities
associated with the military regime, and broadened the categories
of persons targeted by the freezing of funds and economic resources.[21]
5.4 Then, on 6 February 2008, we cleared a revised
Council Regulation which:
· extended
the current restrictive measures which provide sources of revenue
for the military regime of Burma/Myanmar in respect of:
— extending
and updating persons subject to a travel ban;
— the freezing of their assets;
— extending and updating the list of enterprises
in Burma subject to an investment ban.
· proposed
additional restrictive measures:
— an
export ban on the industrial sectors of logs and timber and defined
metals, minerals, precious and semiprecious stones; to include
diamonds, rubies, sapphires, jade and emeralds (the Regulation
will now include finished products with an exemption for personal
items of jewellery);
— an import ban on products from the above
mentioned sectors;
— an investment ban on new trade in the
above mentioned sectors;
— the provision of technical assistance
or training related to relevant equipment and technology destined
for enterprises in the above industries in Burma/Myanmar.
5.5 This was subsequently adopted as Council Regulation
194/2008.
5.6 Later, on 21 April 2008, we cleared Common Position
2008/349/CFSP, which renewed the current restrictive measures
on sources of revenue for the military regime for a further 12
months and amended the Annexes in respect of:
— updating
persons subject to a travel ban (with the inclusion of members
of the judiciary) who are responsible for implementing acts of
repression by the regime and;
— the freezing of their assets;
— updating the list of enterprises in Burma
subject to an investment ban by adding a further 30 names to the
list.
5.7 The Common Position that we considered on 23
April 2009 essentially extended the existing Common Position for
a further 12 months. Both the list of entities subject to an asset
freeze and the list of persons subject to an asset freeze/travel
ban were updated (e.g. to take account of changes within the government).
Apart from these changes, the restrictive measures were renewed
as they were for a further 12 months.
5.8 In her supporting Explanatory Memorandum of 16
April 2009, the then Minister recalled that the Council adopted
these restrictive measures after the violent suppression of peaceful
protesters in November 2007 — the so-called "Saffron
Revolution" — as well as the continued human rights
abuses in Burma and detention of over 1100 political prisoners.
This was, she again said, consistent with EU policy to increase
pressure on the military regime to enter into a meaningful and
genuine dialogue with the democratic opposition, whose ultimate
aim is the eventual transition to civilian rule and full respect
of human rights, including the release of political prisoners
and recognition of the rights of ethnic communities.
5.9 The then Minister strongly supported renewal
"as it binds the 27 Member States to a robust policy in support
of political change in Burma"; extension for a further 12
months was warranted by the lack of improvement of the human rights
situation and the lack of substantive progress towards an inclusive
democratisation process: "the Burmese military have failed
to meet the demands of the international community and continue
to violate human rights, including by continuing to detain and
sentence democracy campaigners", and that "there are
now estimated to be over 2200 political prisoners."
5.10 Then, in his Explanatory Memorandum of 12 August
2009, the Minister of State at the Foreign and Commonwealth Office
(Mr Ivan Lewis) explained that on 13 May 2009 Aung San Suu Kyi
(whom he thereafter referred to as ASSK) was arrested for violating
the terms of her house arrest:
"This violation was as a result of an American
man who swam across the lake surrounding her house, he says, to
warn her that her life was in danger. ASSK's house arrest was
due to expire at the end of the month and it is widely accepted
that the Burmese authorities are using the opportunity offered
by this event to ensure ASSK cannot participate in elections due
in Burma early next year."
5.11 The Minister recalled that in June and July
the Committee was forewarned that:
— should
ASSK be found guilty the EU, with the UK's full support, would
seek to impose further sanctions upon the Burmese regime;
— after much delaying, a guilty verdict
was delivered on 11 August; and
— under the proposed new measures, the
four individuals overseeing ASSK's trial would be added to the
list of those subject to a travel ban and asset freeze within
the EU; several new entities, most notably the media organisations
responsible for the Burmese junta's propaganda, would be subject
to an asset freeze; and 48 other entities currently subject to
an investment ban had also been identified to have any assets
held within the EU frozen.
5.12 Having explained how the procedures for designating
individuals were fully compliant with fundamental rights and noted
the consistency of these measures with EU policy, often led by
the UK, to increase pressure on the military regime in Burma to
enter into a meaningful and genuine dialogue with the democratic
opposition, with the ultimate aim of the eventual transition to
civilian rule and full respect of human rights, including the
release of political prisoners and recognition of the rights of
ethnic communities, the Minister concluded by saying that the
Common Position would be adopted on 13 August 2009.
Our assessment
5.13 At our meeting on 10 September 2009,
we acknowledged the endeavours of the Minister for Europe to forewarn
the Committee, accepted the particular circumstances that had
led to this breach of scrutiny, and cleared the document.
5.14 We also reported these further proposals because
of the widespread interest in the situation in Burma in the House.
5.15 With that interest in mind, we also once again
reminded the Minister that such Explanatory Memoranda should also
outline the wider context, and any action that had been and was
being taken by the government, the EU or other countries —
in this instance, in relation to China, without whose support
it was difficult to see these further measures making any more
impact than had the previous ones. We noted that we would have
liked to know, for example, if the situation in Burma had been
discussed during the most recent EU-China Summit; and if so, what
the Chinese response was.
5.16 In the meantime, we left it to others to judge
what the likely impact of these additional measures would be,
though found it difficult to be optimistic in the light of a recent
US$5.6 billion deal between China and Burma, with the help of
Indian and South Korean companies, to supply China National Petroleum
Corporation (CNPC) with gas for 30 years.[22],
[23]
The Minister for Europe's
letter 25 February 2010
5.17 On 25 February 2010, the Minister for Europe
wrote to inform the Committee that, with the current EU Common
Position on Burma and the restrictive measures it contains due
to expire on 30 April, negotiations to secure the rollover of
these restrictive measures were therefore about to begin.
5.18 After reiterating the circumstances that led
to their imposition in 1996 and recalling the most recent changes
to the EU's Common Position in August 2009, he went on to say
that in late 2009, the Burmese authorities "showed some willingness
to engage with Aung Sang Suu Kyi and the international community",
e.g. in October, Aung San Suu Kyi was permitted to meet the British
Ambassador, in his capacity as the EU representative, for the
first time in six years, and to discuss western sanctions along
with American and Australian officials; and also allowed to meet
US Assistant Secretary of State Kurt Campbell in early November.
These "small but welcome developments" were followed
up in December, when Swedish Foreign Minister Carl Bildt, representing
the EU Presidency, met his Burmese counterpart in the margins
of the Copenhagen conference, and preparations are underway for
a senior officials visit to Burma:
"However dialogue with Aung San Suu Kyi
has since stalled and the regime has failed to engage with the
US or EU on any issues of substance. The recent release of National
League for Democracy Vice-Chairman U Tin Oo, whilst welcome, does
not change the fact that we have seen minimal progress towards
the changes that we are looking for."
5.19 Given that HMG's position was, the Minister
said, that there should be no easing of sanctions in the absence
of tangible progress, the Government would therefore look for
a renewal of the Common Position for a further 12 months —
a position upon which, he said, "there appears, at this stage,
to be a broad consensus amongst Member States …, although
formal discussion of the issue has not yet begun."
5.20 Responding to the Committee's expressed interest
in its earlier reports in UK and EU engagement with other parties,
particularly China, to try and secure change within Burma, the
Minister also said:
"We continue to actively encourage Burma's
regional neighbours, including China, Japan and members of the
Association of South East Asian Nations (ASEAN) to press for a
transition to democracy. As previously noted, the Foreign Secretary
attended the meeting of the UN Secretary General's Group of Friends
on Burma in September 2009, where he stressed that all members,
including China, must continue to use their influence to encourage
the regime to commit to a path of reconciliation and change. The
Prime Minister subsequently raised Burma with Prime Minister Hatayoma
of Japan on 26 November 2009, and he and PM Hatoyama agreed on
the importance of Aung San Suu Kyi's release and full participation
in the democratic process.
"The Government has repeatedly raised the
issue of Burma with ASEAN members. We engaged the Vietnamese government
both before and as it took over the chairmanship of ASEAN for
2010, making clear how important its robust leadership on Burma
is, and highlighting the need for ASEAN to sustain its calls for
the release of political prisoners and credible elections. The
Foreign Secretary raised Burma with Vietnamese Deputy Prime Minister
Hai in London on 21 October 2009, and in a letter to the Deputy
Prime Minister for Foreign Affairs in January 2010 as Vietnam
assumed the ASEAN chairmanship. Most recently, the Foreign Secretary
raised Burma with the new Indonesian Foreign Minister during a
telephone conversation on 8 January 2010. Burma remains a key
foreign policy area for the UK Government and we will continue
to do all we can, including through Burma's neighbours, to secure
a transition to democracy."
5.21 The Committee thanked the Minister for this
information and looked forward to hearing about the outcome of
the negotiations.
5.22 In the meantime, this separate proposal has
been put forward.
Proposal to amend Council Regulation 194/2008
imposing restrictive measures in respect of Burma
5.23 After recalling the background (c.f. earlier
paragraphs in this chapter of our Report), the Minister for Europe
at the Foreign and Commonwealth Office (Chris Bryant) continues
in his Explanatory Memorandum of 11 March 2010 as follows:
"It has now become clear that the resulting
Regulation (194/2008) banning the in-country purchase of timber
and related goods is having a detrimental effect on the ability
of European development agencies and NGOs to provide humanitarian
and development aid and assistance within Burma.
"The Regulation prevents EU entities from
purchasing timber, either directly or indirectly, within Burma.
This is now having a serious impact as several European supported
aid donors, including DFID, [who] have identified an urgent need
to provide replacement housing for the victims of Cyclone Nargis.
Their projects have had to be paused while this situation is resolved.
This problem will also prevent other development work allowed
under the Common Position, including the provision of fishing
boats and tools. Timber cannot be sourced elsewhere, i.e. Thailand,
as this would add significantly to the cost and import of such
goods may be taxed or even not permitted by the Burmese junta.
"The Council is therefore proposing changes
to Regulation 194/2008 governing the restrictive measures in place
on Burma that would allow aid and development organisations to
buy timber for housing for cyclone victims, as well as for their
other programme needs. These houses need to be completed before
the monsoon season begins in June.
"The amendments have yet to be finalised
so we are currently unable to submit any documents for scrutiny,
except the legal advice on this situation from the Council Legal
Service. The urgency for this amendment will mean there will be
little time for scrutiny when the wording is agreed. We are therefore
asking the scrutiny committees to approve HMG's policy of supporting
this amendment. If any drafts do became available before this
issue has been scrutinised we would ensure they were forwarded
to the committees for their consideration."
The Government's view
5.24 The Minister goes on to say that:
· "humanitarian
exemptions are now commonly written into sanctions regimes to
allow essential aid and development work to continue in targeted
countries, but there is no such exemption covering the commodities
ban in the Regulation implementing restrictive measures against
Burma;
· the
aim of UK policy towards Burma, including through sanctions, is
to bring an end to human rights abuses in Burma and to encourage
an early transition to civilian, democratic rule, without any
adverse impact on the general population of Burma;
· altering
the Regulation to allow European development and aid agencies
to operate fully in Burma "would be consistent with the UK
policy of funding aid and development whilst maintaining pressure
on the ruling junta."
Conclusion
5.25 Unorthodox though it is, we are grateful
to the Minister for having taken account of the present likely
timelines and thus enabling the Committee to scrutinise the proposal
prior to the emergence of a legal text. We are content for the
Minister to proceed in the way that he proposes, and look forward
to hearing from him once the proposal has been adopted, and also
with regard to the extant Common Position.
5.26 We continue to look to him to update the
Committee on supporting actions in the wider context, particularly
regarding China, and the responses of those approached for support.
5.27 In the meantime, whilst clearing the document
we are drawing it to the attention of the House because of the
widespread interest in this matter.
21 See headnote. Back
22
See http://www.timesonline.co.uk/tol/business/industry_sectors/natural_resources/article6809986.ece
for further information. Back
23
See headnote: (30854) -: HC 19-xxvi (2008-09), chapter 17 (10
September 2009). Back
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