21 The EU and Myanmar/Burma ~
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| Council Decision 2013/184/CFSP of 22 April 2013 concerning restrictive measures against Myanmar/Burma and repealing Decision 2010/232/CFSP
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| Legal base | Art 29 TEU; unanimity
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letter of 2 August 2013
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| Previous Committee Reports | HC 83-iv (2013-14), chapter 24 (5 June 2013) and HC 83-i (2013-14), chapter 9 (8 May 2013): also see (35213) —: HC 83-xiii (2013-14), chapter 47 (4 September 2013)
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| Discussion in Council | 22 April 2013 Foreign Affairs Council
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| Committee's assessment | Politically important
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| Committee's decision | Cleared (reported to the House on June 2013); further information now provided
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Background
21.1 This Council Decision was adopted by the 22 April Foreign
Affairs Council and implements the decision to end the EU imposed
sanctions against the military government of over several years
(ban on arms exports to, and investment in, Burma; visa restrictions
and asset freezes targeting key officials; ban on exports of gems,
timber and metals), save for the arms embargo.[69]
21.2 The 22 April 2013 Foreign Affairs Council Conclusions:
— welcomed
the developments towards democracy, a strong Parliament, freedom
of expression, and the government's efforts against corruption,
as well as the efforts towards the release of remaining political
prisoners;
— in response to these changes and in the
expectation that they will continue, decided to lift all sanctions
with the exception of the arms embargo;
— professed its readiness to cooperate
with Myanmar/Burma in a wide range of areas, while underlining
the need to release unconditionally the remaining political prisoners,
deal with inter-communal violence and the humanitarian risks
for all displaced people in the Rakhine State and pursue and implement
durable solutions to the underlying causes of the tensions, including
addressing the status of the Rohingya;
— invited the High Representative/Vice
President to discuss and propose a comprehensive framework for
the EU's policy and support to the ongoing reforms for the next
three years; and
— committed itself to support Myanmar/Burma's
political, economic and social transition and welcomed the Task
Force to be launched later in the year, building on the Joint
Statement agreed on 5 March 2013 during the visit to Brussels
of President U Thein Sein.
21.3 At the heart of this exercise was Aung San Suu
Kyi (the pro-democracy leader and Nobel Peace Prize winner), who
was placed under house arrest for many years. The Committee noted
that the Foreign Secretary had said at the time of the Council
meeting that the work of the EU in Burma was "not remotely
finished", but also that Aung San Suu Kyi had also said to
the BBC that it was time to let these sanctions go, and that she
did not want to rely forever on external factors to bring about
national reconciliation, which she regarded as the key to progress
in her country.
21.4 In the first of our previous Reports, the Committee
asked the Minister for Europe (Mr David Lidington) to confirm
that whatever comprehensive framework was produced by the High
Representative/Vice President would be deposited for scrutiny
in the normal way, together with an EM setting out his views on
it. In the meantime, we retained the Council Decision under scrutiny.[70]
21.5 In his reply of 17 May 2013, the Minister said:
"Whilst the exact nature of this document
is still being discussed, should it be determined that such a
document would normally be subject to Parliamentary scrutiny,
I will of course ensure that the document is deposited with your
Committee. If it is not subject to formal scrutiny and thus is
not deposited, I would be happy to write further to your Committee
to update you on the comprehensive framework."
Our assessment
21.6 We saw no reason to presume that this "comprehensive
framework" would be any different from any other such: i.e.,
that support to Burma's reform process — as with other partners
— would be conditions-based, and would not be driven by
the views of any particular party.
21.7 On the face of it, the Minister's position was
one of openness. But he was aware that prior to the adoption
of the Lisbon Treaty, such a "comprehensive framework"
would normally have been adopted via a Council Decision; and that,
since then, he has resisted any proposals from the Commission
and/or EEAS to follow this pattern, arguing that such frameworks,
being essentially political rather than legislative, can only
be adopted via Council Conclusions.
21.8 The Minister thus skated over the disagreement
between him and the Committee over the scrutiny of such proposals
— our view being that it is precisely because they are of
such political importance, and lay the foundations of all future
EU activity in a country or region, that they should be subject
to proper prior parliamentary scrutiny.[71]
The Minister's letter of 2 August 2013
21.9 The Minister writes as follows:
"The Framework was adopted in the form of Council
Conclusions rather than by a Council Decision. In line with normal
scrutiny practice, the Council Conclusions were not deposited
for formal scrutiny by Parliament, but I am pleased to provide
your Committee with this update and a copy of the Council Conclusions.[72]
"Over the last two years we have seen remarkable
progress in Burma. Many of the developments have been unprecedented.
We have witnessed the release of the majority of political prisoners;
credible by-elections which led Aung San Suu Kyi and 42 NLD MPs
to take seats in Burma's parliament; initial ceasefire agreements
with the majority of ethnic groups and steps towards increasing
humanitarian access to conflict areas. One historic moment which
epitomised the changing political dynamic in Burma, attended by
members of your committee, was Aung San Suu Kyi's address to both
Houses of Parliament in June last year.
"It was in recognition of these positive developments
that the EU suspended all sanctions on Burma in April 2012, with
the exception of the arms embargo and restrictions on equipment
which could be used for internal repression. At the time of this
decision, the EU committed to respond positively to further progress,
whilst setting out that the EU expected the unconditional release
of remaining political prisoners, the end to conflict and substantially
improved access for humanitarian assistance, in particular in
Kachin State, as well as to addressing the status and improving
the welfare of the Rohingya.
"There has been encouraging progress on a number
of fronts since then. New challenges have also arisen. There was
an escalation in the conflict in Kachin at the end of last year.
Outbreaks of violence between communities in Rakhine State have
led to a grave humanitarian situation. The subsequent outbreaks
of violence directed at Muslim communities in Meiktila, which
spread to other parts of Burma, point to a troubling trend concerning
the tolerance of minority religions.
"However, the lifting of sanctions in April
did not mean that the EU's expectations for reform in Burma had
in any way diminished. Our eyes are open to the continuing problems
and challenges in Burma. As was outlined in the Foreign Secretary's
Written Ministerial Statement of 17 July, we raised these issues
directly with Burmese President Thein Sein during his visit to
the UK on 15-16 July.
"The UK has pushed to ensure that the Comprehensive
Framework sets out how the EU's engagement with the Burmese government
will seek to address the many challenges that remain. The Framework
covers all of our priority areas: support to the ethnic peace
process; addressing inter-communal tensions and the status of
the Rohingya in Rakhine State; reviewing the constitution; strengthening
parliament, the electoral system, the civil service, the judiciary
and the police force; securing the release of remaining political
prisoners; strengthening human rights, including ratification
of key international human rights conventions and establishing
an EU-Burma Human Rights dialogue; encouraging responsible trade;
and ratification of non-proliferation instruments. The EEAS has
already held positive discussions with the Burmese about establishing
an EU-Burma Human Rights dialogue. If successful, this will be
a key vehicle for engaging on issues of concern in the months
and years ahead.
"Given the broad range of issues outlined in
the document, we have considered whether its language accurately
reflects the balance of competence between the EU and Member States.
In the majority of cases the Framework flows from existing Council
Conclusions on Burma. Where it does not; for instance in health,
tourism and education, the EU either has parallel competence or
can play a supporting role to Member States within the EU. The
Framework makes clear that 'this is a collective effort involving
actions by EU Member States and/or EU institutions'. The document
does not establish new areas of EU competence, or place limitations
on Member States' ability to act. This latter point is particularly
important given the UK has been the largest bilateral donor of
humanitarian assistance to Burma for many years.
"We will continue to play a leading role in
shaping the EU's policy towards Burma. As long as Burma continues
to engage with the international community, the UK will continue
to support its efforts to develop into a democracy as we head
to the 2015 elections and beyond. We will engage with the government
and all parties as a constructive, supportive and critical partner,
committed to supporting reform moves under the President and Aung
San Suu Kyi."
Conclusion
21.10 We have explored at length with the Minister
the issue of proper prior parliamentary scrutiny of documents
that define EU strategy and policy towards a country or region,
mostly in relation to European Neighbourhood Policy (ENP) Action
Plans — the other previous Committee Report under reference
relates to the EU Lebanon Action Plan — and, more generally,
in the evidence that he has given to the Committee during the
course of its inquiry into the scrutiny process in the House.
21.11 Most recently, when giving oral evidence
to the Committee on 3 July, the Minister was asked if he would
agree to our revised Standing Order referring to Action Plans
by name as depositable documents; and responded thus:
"No. The problem with action plans is that
they cover such a wide range of documents. They are not defined
in the treaties in any way. Sometimes action plans can be documents
that are politically important; they will define the EU strategy
towards a particular country or region of the world. We do try
in Government, where that is the case, to submit them for scrutiny."[73]
21.12 It is difficult to escape the conclusion
that, in this further instance, the Minister has not tried very
hard. Adopting the name "Framework" instead of "Action
Plan" or "Strategy" does not alter the reality.
21.13 The Framework attached to the Council Conclusions
has all the essentials of the sort of agreement that the EU draws
up with prospective Member States and those in the "near
neighbourhood", and of other agreements that are named "strategies".
It is indeed comprehensive. It covers, inter alia, EU
support for peace-building, building democracy and respect for
fundamental rights and freedoms, civil service reform, laying
the foundations for inclusive economic development, eliminating
all forms of forced labour, establishing a trade and investment
partnership, rebuilding the education system, building a partnership
for sustainable development and enhancing the country's capacity
to participate in ASEAN and to adhere to and implement the principal
non-proliferation and disarmament agreements. As the Minister
himself says, given the broad range of issues outlined in the
document, it was necessary for him to consider whether its language
accurately reflects the balance of competence between the EU and
Member States: this is a matter not just for the Government but
also for this Committee to consider.
21.14 We shall return to this matter in the Report
on our inquiry into the scrutiny process in the House.
69 See (33852) -: HC 86-ii (2012-13), chapter 20 (16
May 2012) for the Committee's consideration of the Council Decision
that authorised these changes. The history of the EU's policy
towards Burma/Myanmar is set out in the various Reports referred
to in the headnote to that Report. Back
70
See headnote: HC 83-i(2013-14), chapter 9 (8 May 2013). Back
71
HC 83-iv (2013-14), chapter 24 (5 June 2013). Back
72
See http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/138272.pdf. Back
73
See http://www.publications.parliament.uk/pa/cm201314/cmselect/cmeuleg/uc109-iii/uc10901.htm,
Q562. Back
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