Documents considered by the Committee on 27 April 2011 - European Scrutiny Committee Contents


14    Restrictive measures against the regime in Burma

(32668)

Council Decision 2010/232/CFSP of 26 April 2010 renewing restrictive measures against Burma/Myanmar

Legal baseArticle 29 TEU; unanimity
DepartmentForeign and Commonwealth Office
Basis of considerationEM and Minister's letter of 11 April 2011
Previous Committee ReportNone; but see (31494) —: HC 428-i (2010-12), chapter 53 (8 September 2010); (31405) —: HC 5-xiv (2009-10), chapter 5 (17 March 2010); (30854) —: HC 19-xxvi (2008-09), chapter 17 (10 September 2009); (30542)—: HC 19-xiv (2008-09), 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)
To be discussed in Council12 April 2011 Foreign Affairs Council
Committee's assessmentPolitically important
Committee's decisionCleared

Background

14.1  Starting with Common Position 1996/635/CFSP, the EU has adapted and strengthened its sanctions regime against Burma over the 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 change in Burma by placing pressure on those responsible for its policies, whilst minimising any adverse impact on the general population.

14.2  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; and
  • prohibition on EU companies making finance available to, or extending participation in, named Burmese state-owned companies, their joint ventures and subsidiaries.

14.3  In view of further deterioration of the situation in Burma, the EU adopted Common Position 2007/750/CFSP on 19 November 2007 (which the previous Committee cleared 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.[52]

14.4  Then, on 6 February 2008, the previous Committee 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; and
    • 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; and
    • the provision of technical assistance or training related to relevant equipment and technology destined for enterprises in the above industries in Burma/Myanmar.

14.5  This was subsequently adopted as Council Regulation 194/2008.

14.6  Later, on 21 April 2008, the previous Committee 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;
  • the freezing of their assets; and
  • updating the list of enterprises in Burma subject to an investment ban by adding a further 30 names to the list.

14.7  The Common Position that the previous Committee considered on 23 April 2009 essentially extended the existing Common Position for a further 12 months, with the list of entities subject to an asset freeze and the list of persons subject to an asset freeze/travel ban being updated to take account of changes within the government.

14.8  In her supporting Explanatory Memorandum of 16 April 2009, the then Minister (Caroline Flint) 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 1,100 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.

14.9  The then Minister strongly supported renewal because it bound "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] there are now estimated to be over 2200 political prisoners."

14.10  Then, in his Explanatory Memorandum of 12 August 2009, the then Minister of State at the Foreign and Commonwealth Office (Mr Ivan Lewis) explained that on 13 May 2009 Aung San Suu Kyi (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."

14.11  The then Minister recalled that in June and July the previous 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.

14.12  The then Minister concluded by saying that the Common Position would be adopted on 13 August 2009.

14.13  At its meeting on 10 September 2009, the previous Committee 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.

14.14  Though leaving it to others to judge what the likely impact of these additional measures would be, the previous Committee 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.[53],

The then Minister for Europe's letter 25 February 2010

14.15  On 25 February 2010, the then Minister for Europe (Chris Bryant) 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 2010, negotiations to secure the rollover of these restrictive measures were about to begin.

14.16  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 were 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."

14.17  Given that HMG's position was, the then 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, although formal discussion of the issue had not yet begun, he said there appeared to be a broad consensus amongst Member States.

14.18  Responding to the previous 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 then 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."

14.19  The previous Committee thanked the then Minister for this information and looked forward to hearing about the outcome of the negotiations, and also updates on supporting actions in the wider context, particularly regarding China, and the responses of those approached for support.

14.20  In the meantime, the previous Committee drew all this to the attention of the House because of the widespread interest in this matter.[54]

14.21  In his Explanatory Memorandum of 2 June 2010, the Minister for Europe at the Foreign and Commonwealth Office (Mr David Lidington) explained that, despite the signs in late 2009 that the Burmese authorities were more willing to engage with ASSK and the international community, the recently-released new electoral laws, designed to prevent credible opposition in the upcoming elections, suggest that nothing had changed. The Government's position, he further said, was therefore that there should be no easing of sanctions in the absence of tangible progress and a renewal of the Common Position (now a Council Decision) for a further 12 months, which had found a broad consensus amongst Member States and was adopted on 26 April 2010.

14.22  The Minister also noted that the only changes were updating the language to reflect the adoption of the Lisbon Treaty and the list of those individuals/entities subject to these measures to reflect changes that had occurred in Burma over the last year. These measures were, he said, consistent with EU policy, often led by the UK, to increase pressure on the military regime to enter into a meaningful and genuine dialogue with the democratic opposition — the ultimate aim being 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.

14.23  Recalling the previous Committee's interest in the Government's engagement with others, principally China, on this matter, the Minister said:

"The Foreign Secretary raised Burma with Chinese Foreign Minister Yang during his recent visit to Beijing. In addition, officials at the British Embassy met in March with Chinese counterparts to discuss the recently announced Burmese election laws. We continue to encourage China to use its influence to press for genuine political reform in Burma. China maintains its policy of non-interference in Burma's affairs, but did agree to a UK instigated Security Council discussion on recent developments on 24 March. China also participated in a meeting of the UN Secretary General's Group of Friends of Burma the following day, allowing Ban Ki-moon to make a strong statement of concern about the prospects for free and fair elections in Burma. The Government has also repeatedly raised the issue of Burma with ASEAN members. For example, 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."

14.24  The previous Committee had normally not regarded the straightforward extension of an existing package of restrictive measures in response to well-known circumstances as warranting a substantive Report to the House. But, given the traditionally high level of interest in the House in developments in Burma and the Minister's remarks about the new Government's contacts with China and ASEAN, we felt that one was warranted on this occasion.[55]

The draft Council Decision

14.25  In his Explanatory Memorandum of 11 April 2011, the Minister for Europe (Mr David Lidington) recalls that Burma held elections for the first time in 20 years in November 2010 and that Aung San Suu Kyi was released from house arrest a week later. He continues as follows:

"Neither event, however, signified a material improvement in the human rights situation or a weakening of the military regime's grip on power. Human rights abuses continue to be widespread and severe. Restrictions on fundamental freedoms intensified in the run up to the November elections and the number of political prisoners held is over 2,000. The final few months of 2010, continuing into 2011, also saw further conflict between the Burmese army and ethnic groups on the Thai/Burma border, prompting thousands of civilians to flee into Thailand."

14.26  The political situation in Burma at the beginning of 2011, the Minister says, reflects the regime's clear intention to maintain its dominance:

"On 28 January 2011, Aung San Suu Kyi's NLD lost its appeal against dissolution. Shortly after, on 31 January, the upper and regional houses of Parliament held their inaugural session. Over 80% of all seats in both upper and lower houses are held by a regime proxy party and members of the military regime ensuring that the current military leadership retain control of policy."

14.27  Against this background, the Minister says that the changes to the restrictive measures via the adoption of this amending Council Decision are:

  • the list of persons and enterprises subject to the restrictive measures has been amended to take account of changes in the Government, the security forces and the administration in Burma, as well as the personal situations of the individuals concerned;
  • updating Annex I, which is the list of companies involved in sectors where restrictions apply, to remove duplicate entries;
  • the suspension of restrictive measures for new lifelong civilian members of the Government not already listed for abuses, and the Foreign Minister; and
  • ending the suspension of high-level bilateral government visits to Burma until 30 April 2012 with a view to encouraging dialogue with relevant parties in Burma, including Aung San Suu Kyi.

The Government's view

14.28   The Minister says that the Coalition Government's position is that there should be no easing of EU restrictive measures in the absence of tangible progress in Burma and goes on to comment as follows:

"Negotiations in the EU were tough. A number of Member States were minded to see the political developments in Burma as progress and pressed for a relaxation of restrictive measures. But the Government has secured a technical rollover of the Council Decision for a further 12 months, with the existing framework of sanctions protected and maintained. This sends a strong EU message that the developments in Burma cannot be seen as progress."

14.29  With regard to the sanctions imposed on individuals in Burma (those on the list for an assets freeze and travel ban), the Minister says these have been updated thus:

"In reaction to the new government structures in Burma, the EU has added to the list of those subject to the assets freeze and travel ban the new Chief Ministers of the Regions (these are newly created positions). Senior members of the regime's new political party are also listed.

"The EU has suspended for a year the listing of new lifelong civilian officials who are not already listed for abuses and the Foreign Minister. This means that the principle that all senior members of the Government will be listed is retained, but in practice these individuals are not subject to the travel ban or assets freeze over this period, subject to review. Senior members of the Government and military currently listed will continue to be subject to EU sanctions.

"Listing but then suspending selected officials makes it clear that they are on notice and will be judged on their actions. But it should help empower the civilian elements within the Government and influence policy by exposing them to international views and best practice."

14.30  On the question of high-level visits, the Minister says:

"The EU has also suspended for a year its prohibition of EU or national high-level visits to the country (i.e. at the level of Political Director and higher) for a one year period, with the political conditions that visitors must see the genuinely democratic opposition including Aung San Suu Kyi and that visits are coordinated through the EU. The Government expects that this will bolster the opposition including Aung San Suu Kyi and increase the political role of opposition groups in Burma."

14.31  With regard to its own activity, the Minister says:

"The Government has remained in close contact with Aung San Suu Kyi, as well as with other democratic groups, during the EU negotiations and has agreed the steps above because they are in line with Aung San Suu Kyi's wishes to promote dialogue with the government and to encourage a move towards more democratic institutions."

14.32  The Minister concludes by noting that the draft Council Decision will be adopted by the Foreign Affairs Council on 14 April 2011.

The Minister's letter of 11 April 2011

14.33  The Minister begins his letter by regretting his failure to provide the Committee with an Explanatory Memorandum before an amended Council Decision is adopted and, consequently, of finding himself in the position of having to agree to the adoption of this decision before the Committee has cleared it from scrutiny, "as I believe that it is important for the British government to support the new Decision."

14.34  He continues as follows:

"As you know, the responsibility to keep your Committee informed on issues concerning restrictive measures is something I take seriously. I wrote to your Committee on 14 February and 28 March with regard to the renewal of the restrictive measures against Burma. My officials also held an oral briefing on 30 March for members of your Committee, to update you on the progress of the negotiations and the British government's position on the rollover. We advised you that a scrutiny override was probable given the likely timing of a draft Council Decision being circulated and this coinciding with Parliamentary recess. I am now in a position to confirm that a scrutiny override has been unavoidable on this occasion."

Conclusion

14.35   We acknowledge the Minister's endeavours to keep the Committee abreast of the difficult negotiating process and, on this occasion and in these circumstances, do not object to his having over-ridden scrutiny.

14.36  We now clear the document.



52   See headnote. Back

53   See http://www.timesonline.co.uk/tol/business/industry_sectors/natural_resources/article6809986.ece for further information and headnote (30854) -: HC 19-xxvi (2008-09), chapter 17 (10 September 2009). Back

54   See headnote: (31405) -: HC 5-xiv (2009-10), chapter 5 (17 March 2010). Back

55   See headnote: (31494) -: HC 428-i (2010-12), chapter 53 (8 September 2010). Back


 
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