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Major changes in Burma's political situation have precipitated a broad discussion in Congress, the Obama Administration, and elsewhere about the appropriate role forsince 2008 have raised issues for Congress concerning the appropriateness of U.S. restrictions on relations with Burma (Myanmar). These discussions are examiningissues include whether Congress should reexamine U.S. policy toward Burma in general, the appropriate frameworkwhat criteria are appropriate for analyzing the current situation in Burma, and whatwhether it should make adjustments to make oncurrent U.S. restrictions on relations with Burma. On May 17, 2016, President Obama continued the national emergency with respect to Burma to extend some of the restrictions, as well as renew past presidential waivers of other restrictions. In addition, on that same day, the State Department and Treasury Department announced some changes in the implementation of the existing restrictions.
On October 7, 2016, President Obama revoked several executive orders pertaining to sanctions on Burma, and waived restrictions required by Section 5(b) of the Tom Lantos Block Burmese JADE (Junta Anti-Democratic Efforts) Act of 2008 (P.L. 110-286) removing most of the economic restrictions on relations with Burma. On December 2, 2016, he issued Presidential Determination 2017-04, ending restrictions on U.S. assistance to Burma as provided by Section 570(a) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997. Various noneconomic restrictions, however, remain in effect, including bans on providing visas to certain Burmese nationals and other restrictions on U.S. assistance to Burma. Between 1989 and 2008, Congress passed several laws placing political and economic sanctions on Burma's military junta as part of a policy to foster the reestablishment of democratically-elected civilian government, promote the protection of human rights, and identify individuals responsible for repression in Burma and hold them accountable for their actions. In 2011, Burma's military junta, known as the State Peace and Development Council (SPDC) transferred power to a mixed civilian/military government led by the SPDC's ex-
political and economic reforms undertaken by the Thein Sein government.
In November 2015, Burma held nationwide parliamentary elections, from which Aung San Suu Kyi's political party, the National League for Democracy (NLD), emerged as the party with an absolute majority in both chambers of Burma's Union Parliament. The NLD-led Union Parliament chose Htin Kyaw, a long-standing NLD member and close friend of Aung San Suu Kyi, as President. The new government subsequently appointed Aung San Suu Kyi to the newly Aung San Suu Kyi was subsequently appointed to the newly-created position of State Counselor, as well as Foreign Minister.
While the NLD controls the Union Parliament and the executive branch, the Burmese military, oralso known as the Tatmadaw, continuecontinues to exercise significant power under the provisions of Burma's 2008 constitution. For example, 25% of the seats in both chambers of the Union Parliament are military officers appointed by the Tatmadaw's Commander in Chief Senior General Min Aung Hlaing, creating a voting bloc that can prevent any changes in the constitution. In addition, the Tatmadaw engages in active is engaged in fighting with several ethnic armed organizations (EAOs) in a continuation of a nearly six -decade-old low grade civil war. As such, it is uncertain if-grade civil war, as well as allegedly engaging in serious human rights abuses in Rakhine State against Rohingya in response to an October 2016 attack on Tatmadaw posts along the Bangladesh border. As such, it is uncertain that the NLD-led government will have the ability to address its top priorities—national reconciliation and peace; further democratic reforms; respect for human rights; and greater prosperity for the Burmese people.
The overwhelming victory of the National League for Democracy (NLD) in Burma's November 2015 parliamentary elections,1 and the formation of an NLD-led government in March 2016,2 has led to a discussion in Washington about U.S. policy toward Burma, and a more focused discussion of the current restrictions on relations with that nation. During the U.S.-ASEAN3 Summit in February 2016, Burma's then-Vice President Nyan Tun reportedly asked President Obama to remove remaining sanctions on Burma.4
Some people and organizations have called for the removal of many, but not necessarily all, of the remaining restrictions on U.S. relations with Burma.51 Other observers support a more selective relaxation of existing restrictions, given the Burmese military's role in the government, and its apparent opposition to additional political reforms.62 The 115th Congress and the ObamaTrump Administration have an opportunity tomay examine the new and complex political reality in Burma, and determine what changes, if any, to make in U.S. policy, as well as to consider what adjustments, if any, to make on theto current restrictions on U.S. relations with Burma.
On May 17, 2016, President Obama informed Congress of his decision to continue the national emergency with respect to Burma, pursuant to the National Emergencies Act (P.L. 94-412, as amended), thereby maintaining a number of restrictions on relations with Burma, as well as extending past waivers of other restrictions.7 On the same date, the State Department and the Treasury Department announced some adjustments in the implementation of some of the restrictions on relations with Burma.8 During his subsequent visit to Burma, Secretary of State John Kerry stated on May 22, 2016:
[W]e have adjusted our sanctions policy now to strengthen democracy, to encourage inclusive economic growth, and to facilitate foreign investment in the civilian-led government; and at the same time, we are maintaining some sanctions in order to encourage all institutions, investors, and members of society to support the government's continued reform efforts that are aimed at consolidating a civilian-led democracy.9
For several years, Congress has utilized appropriations legislation to set limits on bilateral relations.10 For this reason, Congress may deliberate and conduct oversight over U.S. policy toward Burma as it formulates appropriations legislation, including that for the Department of Defense and the Department of State. At the same time it also may consider U.S. policy toward Burma independent of the appropriations process.
At the time it passed legislation imposing sanctions on Burma, Congress articulated goals of U.S. policy toward Burma, and by extension, how the sanctions would facilitate the achievement of those goals. Among the goals stated in those laws were:
For the 114th Congress, circumstances in Burma have raised a number of questions regarding U.S. policy toward and the restrictions on relations, such as:
Between 1989 and 2008, Congress passed a series of laws imposing political and economic sanctions on Burma's military junta, in response to its violent suppression of the people of Burma and the expressed desire of many of them for democratic reforms.11 From 1962 to 2011, Burma was ruled by a military junta that denied the people of Burma both the right to select the government of their choice and many of their internationally recognized human rights, such as freedom of speech and freedom of association. Between 1989 and 2008, Congress passed a series of laws imposing diplomatic and economic sanctions on Burma's military junta, in response to its violent suppression of the people of Burma, and the expressed desire of many of them for democratic reforms.3 Two of the main sanctions laws were the Burmese Freedom and Democracy Act of 2003 (BFDA, P.L. 108-61) and the JADE Act, which imposed various economic and noneconomic restrictions on U.S. relations with Burma.
In 2008, Burma's military junta, then known as the State Peace and Development Council (SPDC), began a process to transform the nation's government into what it called a "disciplined democracy." On May 8, 2008, the SPDC held a national referendum on a new constitution that would establish a mixed civilian/military government. Many observers viewed the results of the referendum—in which over 90% of the voters supported the new constitution—as fraudulent.124 On November 7, 2010, the SPDC held parliamentary elections that were boycotted by many political parties, including Aung San Suu Kyi's NLDNational League for Democracy (NLD). The pro-military Union Solidarity and Development Party (USDP) won nearly 80% of the contested seats (25% of the seats in Burma's Union Parliament are not contested, but rather under the 2008 constitution are appointed by the Commander-in-Chief of Defence Services). The new Union Parliament appointed SPDC Prime Minister Lt.Lieutenant General Thein Sein as President. He was sworn in on March 30, 2011, after the SPDC officially transferred power to the new government.
Following the establishment of a new government in Burma under the provisions of the 2008 constitution, the Obama Administration adopted a new policy of greater engagement while maintaining existing sanctions.13 Over the last five years, 5 President Obama has utilized the waiver provisions in sanction laws to waive the enforcement of many sanctions, in part in response to President Thein Sein's undertaking some political reforms and releasing many of the political prisoners. As a result, fewer restrictions remain on U.S. relations with Burma than existed prior to 2010, and many of those still enforced are based on presidential executive orders or the policies of the Executive Branch. Congress has also utilized annual appropriations legislation to impose some restrictions on U.S. relations with Burma.
The primary political restriction is a prohibition on providing visas to enter the United States to certain Burmese nationals. Section 570(a)(3) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1997 (P.L. 104-208) states, "Except as required by treaty obligations or to staff the Burmese mission to the United States, the United States should not grant entry visas to any Burmese government official." Section 5(a)(1) of the Tom Lantos Block Burmese JADE (Junta's Anti-democratic Efforts) Act of 2008 (JADE Act; P.L. 110-286) states:
The following persons shall be ineligible for a visa to travel to the United States:
(A) Former and present leaders of the SPDC, the Burmese military, or the USDA.14
(B) Officials of the SPDC, the Burmese military, or the USDA involved in the repression of peaceful political activity or in other gross violations of human rights in Burma or in the commission of other human rights abuses, including any current or former officials of the security services and judicial institutions of the SPDC.
(C) Any other Burmese persons who provide substantial economic and political support for the SPDC, the Burmese military, or the USDA.
(D) The immediate family members of any person described in subparagraphs (A) through (C).
The JADE Act authorizes the President to waive the visa ban if "the President determines and certifies in writing to Congress that travel by the person seeking such a waiver is in the national interest of the United States."
Congress and the Executive Branch have placed several economic restrictions on relations with Burma, including:
Executive Order 13651, issued by President Obama on August 6, 2013, prohibits the "importation into the United States of any jadeite or rubies mined or extracted from Burma and any articles of jewelry containing jadeite or rubies mined or extracted from Burma."15 In addition, the Executive Order prohibits any "transaction that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate" the ban on the importation of prohibited Burmese items. This Executive Order replaced a similar ban on importing Burmese jadeite and rubies in Section 3(a)(2) of the BFDA (as amended by the JADE Act) that lapsed on July 26, 2013 (see "Waived or Lapsed Restrictions" below).
Section 3(a)(2) of the BFDA (as amended by the JADE Act) prohibits the import on any article that is a product of certain Burmese companies, including :
Section 3(a)(2) begins with the phrase, "The import restrictions contained in paragraph (1) shall apply to, among other entities …" The import restrictions contained in paragraph (1), however, lapsed in August 2013. Therefore, it is unclear if the ban in section 3(a)(2) remains in force. Treasury's Burmese Sanctions Regulations (31 C.F.R. 537) do not include prohibitions on products from the companies cited above.16 A summary of U.S. restrictions on relations with Burma published by the Council of Foreign Relations, reportedly based on materials distributed by U.S. officials to Aung San Suu Kyi and the NLD-led government, does include the import ban contained in section 3(a)(2).17
The Role of Treasury's Specially Designated Nationals and Blocked Persons (SDN) List for Burma
None of the laws imposing restrictions on Burma specifically mention Treasury's SDN list. Some of the presidential documents specifying the manner by which the restrictions are to be implemented (such as Presidential Determination 2009-11 and Executive Order 13651) do explicitly refer to the SDN list. |
The assets of some Burmese nationals held by U.S. financial institutions and other entities have been frozen. Section 5(b)(1) of the JADE Act blocks the "transferal, payment, export, withdrawal" or otherwise handling of property or interest in property belonging to a person described in Section 5(a)(1) of the act that is "located in the United States or within the possession or control of a U.S. person"18 (including the overseas branch of a U.S. person); or "comes into the possession or control of a U.S. person after the date of the enactment of this Act" [July 29, 2008].
On January 15, 2009, President George W. Bush issued Presidential Determination 2009-11, stating:
I hereby waive, pursuant to section 5(i) of the JADE Act, the provisions of section 5(b) of the Jade Act with respect to those persons described in section 5(a)(1) of the JADE Act who are not included on the Department of Treasury's List of Specially Designated Nationals and Blocked Persons [SDN list].19
He also delegated the authority to "invoke or revoke" the waiver to the Secretary of the Treasury, as is frequently the practice in other contexts not related to Burma.
President Obama's Executive Order 13651, invoking the authority provided by section 5(i) of the JADE Act, waived the sanctions in section 5(b) of the JADE Act, but also states:
Except as authorized or exempt, transactions with persons included on the Department of the Treasury's List of Specially Designated Nationals and Blocked Persons continue to be prohibited pursuant to IEEPA [International Emergency Economic Powers Act].
U.S. persons, including individuals and companies, are prohibited from engaging in financial transactions with certain Burmese persons and entities. Section 5(b)(2) of the JADE Act bars the payment or transfer of any property, or "any transactions involving the transfer of anything of economic value," as well as the "export or reexport directly or indirectly, of any goods, technology, or services" to persons described by section 5(a)(1) of the act, or to "any entity, owned, controlled, or operated by the SPDC or by an individual described in such subsection." As described above, President Bush waived these restrictions for Burmese nationals and entities not on the SDN list in January 2009. President Obama waived the enforcement of section 5(b) of the JADE Act in August 2013, while maintaining such restrictions under the International Emergency Economic Powers Act (IEEPA) for those Burmese persons on the SDN list.
In addition, section 311 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act, P.L. 107-56) provides the Secretary of the Treasury the authority to require U.S. financial institutions to take "special measures" with regard to overseas financial institutions involved in money laundering.20 On November 18, 2003, the Secretary of the Treasury designated Burma as a jurisdiction of primary money laundering concern, and proposed restrictions on U.S. financial institutions establishing accounts with Burmese financial institutions. On April 2, 2004, the Department of Treasury issued final regulations for these restrictions.21 The Treasury Department subsequently issued general license no. 19 on February 22, 2013, to permit U.S. persons to open accounts with four previously restricted Burmese banks. On June 18, 2014, the Treasury Department released new regulations for Burmese sanctions, which incorporated the provisions of general license No. 19.22 On May 17, 2016, the Treasury Department announced that U.S. persons could engage in financial transactions with two more previously restricted Burmese banks.
Section 570(b) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1997 (P.L. 104-208) prohibited new investments in Burma as of its date of enactment (September 30, 1996), unless the President could certify that "Burma has made measurable and substantial progress in improving human rights practices and implementing democratic government." On July 11, 2012, the Department of the Treasury's Office of Foreign Assets Control issued General License No. 17, allowing new investments in Burma provided that:
The Department of State, Foreign Operations, and Related Programs Appropriations Act, 2016 (division K of the Consolidated Appropriations Act, 2016 (P.L. 114-113)) contains several restrictions on U.S. programs or activities in Burma. Section 7034(b)(2) prohibits the appropriation of funds "to support any military training or operations that include child soldiers," or for "tear gas, small arms, light weapons, ammunition, or other items for crowd control purposes for foreign security forces that use excessive force to repress peaceful expression, association, or assembly in countries undergoing democratic transition." This would apply to Burma as it does to other countries. Section 7043 prohibits the use of Economic Support Fund appropriations to:
On November 8, 2015, Burma held nationwide parliamentary elections; the NLD won in a landslide, securing nearly 80% of the contested seats.7 The Union Parliament chose Htin Kyaw, a long-standing NLD member and close friend of Aung San Suu Kyi, as President. Aung San Suu Kyi was subsequently appointed to the newly created position of State Counselor, as well as Foreign Minister. The establishment of an NLD-led government raises questions for Congress about whether the new government constitutes a partial achievement of U.S. policy goals that might warrant a relaxation of some of the remaining restrictions on U.S. relations with Burma. During Aung San Suu Kyi's September 2016 visit to Washington, DC, President Obama announced Burma's reinstatement in the U.S. Generalized System of Preferences (GSP) program and his intention to revoke several executive orders that enforced sanctions on Burma.8 President Obama's pledge to revoke the executive orders was fulfilled by the release of E.O. 13472 on October 7, 2016. On December 2, 2016, he issued Presidential Determination 2017-04, ending restrictions on U.S. assistance to Burma as provided by Section 570(a) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997.9 Several noneconomic restrictions as detailed in the sections that follow, however, remain in effect, including
In addition, Congress has set limits on bilateral relations in appropriations legislation. Section 7043(b) of the Consolidated Appropriations Act, 2016 (P.L. 114-113), for example, established a number of restrictions on bilateral, international security, and multilateral assistance to Burma. These restrictions remain in effect in FY2017 under the provisions of the Further Continuing and Security Assistance Appropriations Act, 2017 (P.L. 114-254). Similar restrictions were included in the Consolidated Appropriations Act, 2012 (P.L. 112-74); the Consolidated Appropriations Act, 2014 (P.L. 113-76); and the Consolidated and Further Continuing Appropriations Act, 2015 (P.L. 113-235).
At the time it passed legislation imposing sanctions on Burma, Congress articulated goals of U.S. policy toward Burma and, by extension, how the sanctions might facilitate the achievement of those goals. Among the goals stated in those laws were
Circumstances in Burma have raised a number of questions for Congress regarding U.S. policy and the restrictions on relations, such as the following:
One restriction that is still in effect is a prohibition on providing visas to enter the United States to certain Burmese nationals. Section 570(a)(3) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1997 (P.L. 104-208) states, "Except as required by treaty obligations or to staff the Burmese mission to the United States, the United States should not grant entry visas to any Burmese government official." Section 6 of the Burmese Freedom and Democracy Act (BFDA; P.L. 108-61) expanded the discretionary authority to deny entry visas to "the former and present leadership" of the SPDC and USDA. Neither the President nor the State Department has used the authority granted by these two laws.
Section 5(a)(1) of the Tom Lantos Block Burmese JADE (Junta's Anti-Democratic Efforts) Act of 2008 (JADE Act; P.L. 110-286) states:
The following persons shall be ineligible for a visa to travel to the United States:
(A) Former and present leaders of the SPDC, the Burmese military, or the USDA.10
(B) Officials of the SPDC, the Burmese military, or the USDA involved in the repression of peaceful political activity or in other gross violations of human rights in Burma or in the commission of other human rights abuses, including any current or former officials of the security services and judicial institutions of the SPDC.
(C) Any other Burmese persons who provide substantial economic and political support for the SPDC, the Burmese military, or the USDA.
(D) The immediate family members of any person described in subparagraphs (A) through (C).
The JADE Act authorizes the President to waive the visa ban if "the President determines and certifies in writing to Congress that travel by the person seeking such a waiver is in the national interest of the United States." The Obama Administration on many occasions issued such presidential waivers.
Restrictions on U.S. AssistanceThe Department of State, Foreign Operations, and Related Programs Appropriations Act, 2016 (Division K of the Consolidated Appropriations Act, 2016 [P.L. 114-113], continued until December 9, 2016, by Section 101[a][10] of P.L. 114-223 [130 Stat. 909]) contains several restrictions on U.S. programs and activities in Burma. Section 7034(b)(2) prohibits the appropriation of funds, to Burma and other countries, "to support any military training or operations that include child soldiers," or for "tear gas, small arms, light weapons, ammunition, or other items for crowd control purposes for foreign security forces that use excessive force to repress peaceful expression, association, or assembly in countries undergoing democratic transition." Section 7043 prohibits the availability of Economic Support Funds to
the Government of Burma for budget support;In addition to the programmatic restrictions in P.L. 114-113, various U.S. laws, Executive Orders, and current U.S. policy placeas continued by P.L. 114-223, the JADE Act places restrictions on U.S. relations with Burma's military. These include the following:
Pursuant to section 5(i) of the JADE Act, I hereby determine and certify that it is in the national interest of the United States to waive, and hereby waive, the sanctions described in section 5(b) of the JADE Act. Except as authorized or exempt, transactions with persons included the Department of Treasury's List of Specially Designated Nationals and Blocked Persons continue to be prohibited pursuant to IEEPA.26
President Obama also issued Executive Order 13619 on July 11, 2012, blocking the transfer of property for various categories of persons, determined by the Secretary of the Treasury, to:
To the extent that the Secretary of the Treasury determines that any Burmese military officer or soldier has engaged in any of the acts delineated by Executive Order 13619, their property is blocked.
As noted above, some of the laws imposing sanctions on Burma also included provisions whereby the President could waive, temporarily or permanently, the sanctions under certain conditions. In addition, some of the laws also contain provisions by which the President can terminate the sanctions. To date, no President has exercised the authority to terminate sanctions on Burma, but some have utilized the waiver authority to suspend the imposition of certain restrictions. President Obama has waived several restrictions, but has repeatedly stated that these waivers could be reversed, and the restrictions reimposed, if conditions in Burma so warrant.27 In addition, Congress has permitted certain trade restrictions contained in the BFDA to lapse by not passing the necessary annual renewal resolution.
As noted above, some of the laws imposing sanctions on Burma also include provisions whereby the President could waive, temporarily or permanently, the sanctions under certain conditions. In addition, some of the laws also contain provisions by which the President can terminate the sanctions. President Obama waived several restrictions, but also stated that waivers could be reversed, and the restrictions reimposed, if conditions in Burma so warrant.13 On December 2, he issued Presidential Determination 2017-04, terminating the restrictions on bilateral assistance to Burma contained in Section 570(a) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997 (P.L. 104-208).14 In addition, Congress has permitted certain trade restrictions contained in Sections 3 and 3A of the BFDA (as amended) to lapse by not passing the necessary annual renewal resolution. In the past, Congress and the executive branch placed several economic restrictions on relations with Burma that have been subsequently terminated, waived, or suspended, including Section 3 and 3A of the BFDA (as amended) banned the importation of "any article that is a product of Burma," goods and services from certain Burmese companies, jadeite and rubies from Burma, and articles of jewelry containing jadeite or rubies from Burma. This ban, however, was subject to annual renewal by Congress passing a resolution as stipulated in Section 9(b) of the same act. From 2004 to 2012, Congress passed the annual renewal resolution, but has not done so since. As a consequence, these restrictions contained in Section 3 and 3A of the BFDA have lapsed, but could be reinstated by the passage of the required resolution. On August 7, 2013, President Obama issued Executive Order 13651, reinstating the ban on the import of jadeite and rubies from Burma, and articles of jewelry containing jadeite or rubies from Burma. Executive Order 13651, however, was revoked on October 7, 2016, when President Obama issued Executive Order 13742, thereby terminating the ban on the import of jadeite and rubies from Burma. Section 5(b)(1) of the JADE Act blocked the transferal, payment, export, withdrawal, or other handling of property or interest in property belonging to a person described in Section 5(a)(1) of the act that is "located in the United States or within the possession or control of a U.S. person"15 (including the overseas branch of a U.S. person); or "comes into the possession or control of a U.S. person after the date of the enactment of this Act" (July 29, 2008). In Executive Order 13742 on October 7, 2016, President Obama "determined and certified" to Congress that "it is in the national interest of the United States" to waive the sanctions in Section 5(b) of the JADE Act, pursuant to Section 5(i) of that act. As described above, Section 5(b) of the JADE Act freezes the assets of persons described by sectionWaived or Lapsed Restrictions
Ban on Import of Products of Burma
sectionSection 5(a)(1) of the act, or to "any entity, owned, controlled, or operated by the SPDC or by an individual described in such subsection." Pursuant to Section 5(i) of the same law, President Obama determined and certified to Congress on August 6, 2013, October 7, 2016, in Executive Order 13742 that it was in the national interest of the United States to waive these sanctions.
Section 3 and 3A of the BFDA (as amended) bans the importation of "any article that is a product of Burma," goods and services from certain Burmese companies, jadeite and rubies from Burma, and articles of jewelry containing jadeite or rubies from Burma. This ban, however, is subject to annual renewal by Congress passing a resolution as stipulated in Section 9(b) of the same Act. From 2004 to 2012, Congress passed the annual renewal resolution, but has not done so for the last three years. On August 7, 2013, President Obama issued Executive Order 13651, reinstating the ban on the import of jadeite and rubies from Burma, and articles of jewelry containing jadeite or rubies from Burma. As a consequence, these restrictions contained in Section 3 and 3A of the BFDA have lapsed, but could be reinstated by the passage of the required resolution.
Section 570(b) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1997 (P.L. 104-208) states:
The President is hereby authorized to prohibit, and shall prohibit United States persons from new investment in Burma, if the President determines and certifies to Congress that, after the date of enactment of this Act, the Government of Burma has physically harmed, rearrested for political acts, or exiled Daw Aung San Suu Kyi or has committed large-scale repression of or violence against the Democratic opposition.
Pursuant to Section 570(e) of the same Actact, the Department of State (having been delegated authority by President Obama) waived the investment restrictions on Section 570(b) effective July 11, 2012, having determined that it would be contrary to the national security interests of the United States to continue the restrictions.28 On that same date, the Department of the Treasury issued General License No. 17, authorizing new investment in Burma, subject to certain restrictions (such as prohibiting investments with Burmese nationals subject to financial sanctions).
Although Congress has passed legislation providing the President with the authority to place restrictions on relations with Burma, Presidents Clinton, Bush, and Obama have chosen to invoke powers pursuant to the International Emergency Economic Powers Act of 1977 (IEEPA) to place certain additional restrictions on Burma. The following executive actions cite IEEPA (among other sources) as providing the authority to impose restrictions on relations with Burma:
In addition, some executive actions cited IEEPA authority to waive or restrict the scope of some of the sanctions placed on Burma. For example, section 8 of Executive Order 13310 limited the scope of the general import ban in section 3 of the BFDA to exclude the import of goods under obligations in the Vienna Convention on Diplomatic Relations, the Vienna Convention on Consular Relations, the United Nations Headquarters Agreement, and "other legal instruments providing equivalent privileges and immunities." Similarly, Presidential Determination No. 2009-11 refers to IEEPA to waive the provisions of section 5(b) of the JADE Act for individuals not on the SDN list.
Because IEEPA authority is contingent on the continuation of the national emergency that is an "unusual and extraordinary threat to the national security and foreign policy of the United States," if the President does not extend the continuation for another year, the presidential executive orders and determinations made using IEEPA authority lapse, and with them, the restrictions or waivers of restrictions made by those documents.
As of the writing of this report, the NLD-led government and Aung San Suu Kyi do not appear publicly to have made definitive statements regarding their views on the current U.S. restrictions on relations with Burma. In November 2015, when asked in an interview with the Washington Post if she would like to see U.S. sanctions lifted, Aung San Suu Kyi reportedly said, "Well, with a genuinely democratic government in power, I do not see why they would need to keep sanctions on."29 In March 2016, however, Han Thar Myint, an NLD central executive committee member, reportedly said that the NLD will not push for a lifting of U.S. restrictions given the military retains considerable power in the government, as well as in Burma's economy.30
In a joint press availability after her meeting with Secretary Kerry on May 22, 2016, Aung San Suu Kyi stated:
"[W]e're not afraid of sanctions. We're not afraid of scrutiny. We believe that if we are going along the right path, all sanctions should be lifted in good time.… I understand and I accept and I believe that United States is a friend, and are not keeping the sanctions to hurt us.… I'm sure that the time will come soon where the United States will rule that this is not the time for sanctions."31
The Obama Administration has adopted a measured approach to relations with Burma since the November 8, 2015, parliamentary elections, with a focus on achieving the goals of peace, democracy, and development. On the day of the elections, Secretary John Kerry issued a press statement congratulating the people of Burma for holding "a peaceful and historic poll," and stating, "The United States remains committed to supporting the people of Burma in their pursuit of democracy, development, and national reconciliation going forward."32 In his testimony to the House Committee on Foreign Affairs on April 28, 2016, Deputy Secretary of State Antony Blinken said:
The recent elections and peaceful transition of power in Burma represent a historic milestone, and they offer a moment of opportunity for Burma to move forward with additional reforms to tackle the many challenges that still remain. The national reconciliation process must continue, the rights of ethnic and religious minorities must be respected, remaining political prisoners must be released, and broad-based economic growth must be sustained. We continue to work with the new government to offer any support we can to aid in Burma's success.33
The Obama Administration's measured approach apparently also applies to the remaining restrictions on relations with Burma. In response to a question during his nomination hearing about lifting the remaining sanctions on Burma, Ambassador Scot Marciel replied:
[W]e had broad sanctions against kind of Burma writ large up until 2011 when the reforms started. After those reforms began we suspended some of those sanctions, kind of the broad sanctions against the overall economy, while maintaining targeted sanctions on individuals and entities who were either involved in human rights violations or were clearly blocking reforms or undermining reforms.… [A]t this point and certainly going forward with the transition, I wouldn't anticipate nor recommend any dramatic change to that. I think we want to see how this transition works. And then I think we'd want to consult with the new government as well as Congress closely on any changes.
A few days later, another senior administration official, speaking under the condition of anonymity, reportedly said, "Eventually there will be a broader Burma policy discussion, depending on how events unfold. At this point there are no significant changes to our sanctions policy."34 On May 10, 2016, in an interview with the Burmese media, Ambassador Marciel told reporters that the United States was reviewing the remaining restrictions, but he did not know the outcome of that review.35
As previously mentioned, President Obama notified Congress on May 17, 2016, that he was continuing the national emergency with respect to Burma "to deal with the unusual and extraordinary threat to national security and foreign policy of the United States constituted by the actions and policies of the Government of Burma."36 In doing so, President Obama kept in effect the measures contained in Executive Orders 13047, 13310, 13448, 13464, 13619, and 13651, including those measures imposing restrictions on certain entities and those waiving restrictions contained in the various laws imposing sanctions on Burma.
On the same day, the Department of the Treasury announced some adjustments in the implementation of restrictions on relations with Burma.37 The implementation adjustments announced by Treasury included:
Revising or adding three general licenses (GL):
a new GL permitting financial transactions in Burma for U.S. persons residing in Burma, such as payment of rent and other living expenses.
GL20, which allows trade-related financial transactions, was made permanent, and expanded to include warehousing and local transportation costs.
GL19, which allows U.S. persons to conduct financial transactions with otherwise prohibited Burmese financial institutions that are on OFAC's SDN list, was changed to add Innwa Bank and Myawaddy Bank, and remove Myanma Economic Bank and Myanma Investment and Commercial Bank.
Changes to the SDN list, specifically:
Removing seven State-owned enterprises—Myanmar Timber Enterprise; Myanmar Pearl Enterprise; Myanmar Gem Enterprise; No. 1 Mining Enterprise; No. 2 Mining Enterprise; No. 3 Mining Enterprise; and Co-Operative Export-Import Enterprise—from the SDN list either because they are now under the authority of a civilian-led ministry or they no longer exist.
Removing three State-owned banks—Myanma Economic Bank; Myanmar Foreign Trade Bank; and Myanma Investment and Commercial Bank—from the SDN list.
Adding six companies owned by Stephen Law or Asian World—Asia Mega Link Co., Ltd., Asia Mega Link Services Co., Ltd., Pioneer Aerodrome Services Co., Ltd., Green Asia Services Co., Ltd., Global World Insurance Company Limited, and Shwe Nar Wah Company—to the SDN list [note: doing business with these six companies was already prohibited under the restrictions on doing business with companies owned by persons or entities on the SDN list].
The Department of State also made an adjustment in its implementation of restrictions on relations with Burma on May 17, 2016. As part of July 2012 waiver of ban on new investments in Burma, the State Department required all U.S. investors of $500,000 or more in Burma to report various details of the investment to the State Department under its Responsible Investment Reporting Requirement (RIRR) program.38 On May 17, 2016, the State Department increased the RIRR reporting threshold to $5 million or more.
In a speech given at the Center for New American Security on May 17, 2016, Deputy National Security Advisor Ben Rhodes described the Administration's rationale for the various charges in the implementation of restrictions on relations with Burma announced on that day:
The remaining targeted sanctions and our diplomatic efforts more broadly are designed to support Burma's efforts to continue democratic reforms while supporting inclusive economic growth. To that end, today we are announcing steps to support Burma's government through changes to our sanctions regime.39
Secretary John Kerry, during his May 22, 2016, visit to Burma, provided a similar explanation for the changes in U.S. restrictions on relations with Burma:
[W]e have adjusted our sanctions policy now to strengthen democracy, to encourage inclusive economic growth, and to facilitate foreign investment in the civilian-led economy; and at the same time, we are maintaining some sanctions in order to encourage all institutions, investors, and members of society to support the government's continued reform efforts that are aimed at consolidating a civilian-led democracy.40
A number of different factors may play a role in any congressional consideration of U.S. restrictions on relations with Burma. One factor is the need to assess the goals of U.S. policy toward Burma, the prospects for their achievement, and the possible contradictions among those goals. Another factor is the perspective one takes on the current political situation in Burma, and the possibility for further political and economic reforms. Congress also may examine to what extent restrictions on relations may enhance or harm developments in Burma that are consistent with U.S. policy objectives, and as a consequence, which restrictions to maintain, impose, or remove.
For many years, Congress and the Executive Branch have, in general, shared a common view on the broader goals of U.S. policy in Burma—the establishment of a democratically-elected civilian government that respects the human rights of its people and promotes peace and prosperity to its nation. Current U.S. ambassador to Burma, Scot Marciel, reiterated this policy in a press interview on May 10, 2016, stating, "But our goal, the United States' goal, remains the same: We want to see a peaceful, prosperous, democratic Myanmar. One whose people live in harmony and enjoy full rights."41
What Congress determines should be the current objectives of U.S. policy toward Burma, and within those goals, which have greater priority, could affect what Congress may do with respect to U.S. restrictions on relations with that nation. Among the more specific objectives for U.S. policy in Burma being discussed are:
Moving beyond these general goals, however, may reveal underlying contradictions between the different goals. For example, efforts to promote economic prosperity in Burma may run counter to establishing a democratically-elected civilian government. The Burmese military, via such entities as the Myanmar Economic Corporation (MEC) and the Union of Myanmar Economic Holdings Limited (UMEHL), control many sectors of the Burmese economy, including most of the nation's natural resources. Efforts to promote economic prosperity by permitting U.S. trade and investment in portions of the economy controlled by the Burmese military may bolster their economic and political power, and as such, lead Burma's military leaders to resist further political and economic reforms, which may necessitate that the Burmese military relinquish some or all of its seats in the Union Parliament, as well as their control over the appointment of the Ministers of Border Affairs, Defence, and Home Affairs. Alternatively, permitting U.S. economic relations with MEC, UMEHL, and other companies owned by the Burmese military, its leaders and/or relatives and close friends of the military leaders, may lead to Burma's military leaders to be more willing to relinquish some of their political power.
Section 570(a) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1997 (P.L. 104-208) restricted bilateral assistance to Burma to
(A) humanitarian assistance,
(B) subject to the regular notification procedures of the Committees on Appropriations, counter-narcotics assistance under chapter 8 of part I of the Foreign Assistance Act of 1961, or crop substitution assistance, if the Secretary of State certifies to the appropriate congressional committees that—
(i) the Government of Burma is fully cooperating with United States counter-narcotics efforts, and
(ii) the programs are fully consistent with United States human rights concerns in Burma and serve the United States national interest, and
(C) assistance promoting human rights and democratic values.
The act also provided that these restrictions were to remain in effect "[u]ntil such time as the President determines and certifies to Congress that Burma has made measurable and substantial progress in improving human rights practices and implementing democratic government."
On December 2, 2016, President Obama issued Presidential Determination 2017-04, providing such a determination and certification to Congress, and thereby terminating the restrictions on bilateral assistance contained in Section 570(a).
Restrictions on Multilateral AssistanceSection 307(a) of the Foreign Assistance Act of 1961 (P.L. 87-195, as amended) withholds the "United States proportionate share" of the funding for certain international organizations' programs in Burma (as well as several other nations). Section 307(c) exempts the Atomic Energy Agency and the United Nations Children's Fund (UNICEF). Organizations subject to the restriction include the United Nations Development Program, the United Nations Environmental Program, the World Meteorological Organization, and a number of other U.N. programs. Section 7017 of the Consolidated Appropriations Act, 2016 (P.L. 114-113), however, included the statement that "the requirement to withhold funds for programs in Burma under section 307(a) of the Foreign Assistance Act of 1961 shall not apply to funds appropriated by this Act." This exemption was extended into FY2017 by P.L. 114-223 and P.L. 114-254.
Section 5 of the 2003 BFDA required the U.S. executive director of each international financial institution (IFI) in which the United States participates to vote against the extension of any loan or financial or technical assistance to Burma.
In September 2012, Congress passed P.L. 112-192, granting the President the authority to waive U.S. opposition to IFI assistance to Burma required under Section 5 of the 2003 BFDA if the President determines that doing so is in the national interest of the United States. President Obama issued a memorandum on October 10, 2012, delegating the authority granted by P.L. 112-192 to Secretary of State Clinton, who then issued a determination stating that "it is in the national interest of the United States to support assistance for Burma."17
Prohibition on Military Training or Operations that Include Child SoldiersSince 2010, Burma has been designated by the State Department as a country whose government has armed forces or government-supported armed groups that recruit and use child soldiers. Pursuant to the Child Soldiers Prevention Act of 2008 (CSPA, P.L. 110-457), certain security assistance and commercial licensing of military equipment with Burma (including IMET, FMF, Excess Defense Articles, and Peacekeeping Operations, as well as the issuance of licenses for direct commercial sales of military equipment) are prohibited, unless the President issues a waiver. On September 28, 2016, President Obama issued such a waiver for Burma.18
However, Section 7034(b)(1) of P.L. 114-113 states, "Funds appropriated by this Act should not be used to support any military training or operations that include child soldiers." P.L. 114-223, which provided for continuing appropriations through December 9, 2016, continued existing restrictions on funds for FY2017 (unless otherwise explicitly permitted). Given that the State Department has identified Burma as a nation that recruits and uses child soldiers,19 this section would apparently preclude military training or operations with either the entire Burmese military, or those units within it that include child soldiers.
Perspective of the NLD-Led GovernmentThe NLD-led government and Aung San Suu Kyi have given mixed and sometimes contradictory statements on U.S. restrictions on relations with Burma. In November 2015, when asked if she would like to see U.S. sanctions lifted, Aung San Suu Kyi reportedly said, "Well, with a genuinely democratic government in power, I do not see why they would need to keep sanctions on."20 In March 2016, however, Han Thar Myint, an NLD central executive committee member, reportedly said that the NLD will not push for a lifting of U.S. restrictions given that the military retains considerable power in the government, as well as in Burma's economy.21
In a joint press availability after her meeting with Secretary of State Kerry on May 22, 2016, Aung San Suu Kyi stated:
[W]e're not afraid of sanctions. We're not afraid of scrutiny. We believe that if we are going along the right path, all sanctions should be lifted in good time.… I understand and I accept and I believe that United States is a friend, and are not keeping the sanctions to hurt us.… I'm sure that the time will come soon where the United States will rule that this is not the time for sanctions.22
Ambiguity over the NLD-led government's position on U.S. restrictions on relations with Burma arose during Aung San Suu Kyi's visit to Washington, DC, in September 2016. In a press statement following their meeting in the Oval Office on September 14, 2016, Aung San Suu Kyi stated, "We think that the time has now come to remove all the sanctions that hurt us economically, because our country is in a position to open up to those who are interested in taking part in our economic enterprises."23 In subsequent meetings with Members of Congress, however, Aung San Suu Kyi reportedly said that she had hoped that some restrictions on relations with high-level Burmese military officers and businesses owned or controlled by the Burmese military could remain in effect, but also reportedly said that she had been told by U.S. officials that such a selective retention of restrictions was not possible.
Congressional ConsiderationsCongress may examine a number of different factors as it considers whether to alter U.S. restrictions on relations with Burma. One question is whether to reassess the goals of U.S. policy toward Burma, the prospects for achieving them, and whether there are contradictions among them. Another factor is how to evaluate the current political situation in Burma, and whether further political and economic reforms are likely. Congress may also examine to what extent restrictions on relations enhance or harm developments in Burma that are consistent with U.S. policy objectives in order to determine which restrictions to maintain, impose, or remove.
Goals of U.S. PolicyFor many years, Congress and the executive branch have, in general, shared a common view on the broader goals of U.S. policy in Burma—the establishment of a democratically elected civilian government that respects the human rights of its people and promotes the peace and prosperity of the nation. The current U.S. ambassador to Burma, Scot Marciel, reiterated this policy in a press interview on May 10, 2016, stating, "But our goal, the United States' goal, remains the same: We want to see a peaceful, prosperous, democratic Myanmar. One whose people live in harmony and enjoy full rights."24
What Congress chooses to do with respect to U.S. restrictions on relations with Burma will depend on what it determines the objectives of U.S. policy toward Burma should be, and in what order of priority. Among the specific objectives for U.S. policy in Burma that Congress may choose to consider are
Moving beyond these general goals, however, may reveal underlying contradictions between the different goals. Efforts to promote economic prosperity in Burma, for example, may run counter to establishing a democratically elected civilian government. The Burmese military, via such entities as the Myanmar Economic Corporation (MEC) and the Union of Myanmar Economic Holdings Limited (UMEHL), controls many sectors of the Burmese economy, including most of the nation's natural resources. Efforts to promote economic prosperity by permitting U.S. trade and investment in portions of the economy controlled by the Burmese military may bolster their economic and political power, and as such, lead Burma's military leaders to resist further political and economic reforms. Further political and economic reform could depend on the Burmese military's willingness to relinquish some or all of its seats in the Union Parliament, as well as its control over the appointment of the Ministers of Border Affairs, Defence, and Home Affairs. At the same time, however, it is also possible that permitting U.S. economic relations with MEC, UMEHL, and other companies owned by the Burmese military, its leaders, and/or relatives and close friends of the military leaders, could prompt Burma's military leaders to be more willing to relinquish some of their political power. Congress may wish to explore these questions further.
Aung San Suu Kyi has emerged as the dominant political figure in the NLD-led government, and is using her authority as State Counselor and Foreign Minister to set priorities and oversee implementation of government policy. Depending on how the dynamics between Aung San Suu Kyi and other influential figures and forces (such as Commander-in-Chief Min Aung Hlaing and the ethnic armed organizations) proceed, Congress may choose to assess if her views on specific issues are consistent with U.S. policy, and how best to work with her to advance those efforts.
Understanding the views of Burma's military leaders has always been crucial in forming a framework to understand Burmese political conditions. It was Burma's military leaders that effectively wrote the 2008 constitution, held the parliamentary elections in 2010 and 2015, and formed the core of the Thein Sein government that ran the country from 2011- to 2015. The political and economic reforms that have occurred in Burma since 2008 are either the direct results of the actions of Burma's military leaders or wherewere undertaken with the support of the military leaders. Those reforms, in addition, are have been generally consistent with the "seven step roadmap to a disciplined democracy" announced by General Khin Nyunt, the military junta's Prime Minister, on 30 AugustAugust 30, 2003. As a result, it remains uncertainunclear if Burma's military leaders arewill be supportive of or willing to allow furtherthe political and economic reforms proposed by the NLD-led government, or if they will resist efforts to fundamentally alter the current governance system.
Similarly, the opinions of the various ethnic armed organizations (EAOs)EAOs may play a vital role in achieving U.S. goals in Burma. Ending the civil war will either require the EAOs agree to a ceasefirecease-fire and the terms of Burma's governance system, and/or their military defeat. Achieving the former may require major changes in the 2008 constitution (including its possible replacement with a new constitution) and Burma's economy, particularly control over the nations'nation's natural resources. Such changes may be unacceptable to Burma's military andor the NLD-led government. Defeating the EAOs in the battlefield, however, may be beyond the capabilities of the Burmese military without substantial international assistance, as well as the support of the NLD-led government. At this time, neither Aung San Suu Kyi ornor the NLD-led government appear to support a military solution to Burma's civil war., but prospects for Aung San Suu Kyi's proposed peace process also are unclear.25
Another potentially important force in Burma's current political dynamicsdynamic is the community of emerging civil society organizations (CSOs). During the decades of military rule, Burma's military leaders actively suppressed the establishment of CSOs as part of their desire to keepin order to maintain control over the Burmese people. The Thein Sein government allowed the emergence of issue-driven CSOs in Burma, and some of them have undertaken causes generally consistent with U.S. policy.
Besides their potential support for U.S. goals in Burma, The NLD-led government has been in office for less than a year, but questions are starting to rise about its commitment and ability to secure an end to the nation's civil war, promote political reform, and protect the human rights of the Burmese people. Aung San Suu Kyi has identified the end the civil war as a top priority for the new government, but the "21st Century Panglong Conference," held on August 31-September 3, 2016, demonstrated the various groups attending the conference have different visions for a democratic federated state of Burma and the path to achieving that goal.28 Since the conference was held, fighting between the Tatmadaw and at least four of the EAOs (the Kachin Independence Army, the Myanmar National Democratic Alliance Army, the Ta'ang National Liberation Army, and Arakan Army) has escalated, raising doubts about the prospects for peace and the Tatmadaw's support for a nationwide cease-fire agreement.29 A seemingly coordinated attack on three security outposts along the border with Bangladesh in October 2016 has touched off a new round of violence in Rakhine State, with allegations that the Tatmadaw and other Burmese security forces are perpetrating serious human rights violations against the Rohingya, a predominately Muslim ethnic group residing in northern Rakhine State. According to the United Nations, more than 65,000 Rohingya have fled across the border into Bangladesh, some recounting stories of Tatmadaw and other security personnel killing and raping Rohingya civilians, and destroying Rohingya villages.30 A U.N. High Commissioner for Refugees (UNHCR) representative in Bangladesh reportedly said that he thought the "ultimate goal" of the recent violence was "ethnic cleansing of the Muslim minority in Myanmar."31 On November 30, 2016, U.N. Special Advisor on the Prevention of Genocide Adama Dieng stated the allegations of human rights abuse in Rakhine State "must be verified as a matter of urgency." Former U.N. General Secretary Kofi Annan, who was appointed by Aung San Suu Kyi to head an international advisory commission on Rakhine State, pressed for the media and human rights groups to be provided access to the affected areas (after the Tatmadaw denied international access).32 State Department Press Office Director Elizabeth Trudeau stated in the State Department press briefing of November 15, 2016, that the NLD-led government needs "to facilitate a credible and independent investigation of these allegations to improve transparency and information sharing, and to provide access for both media as well as humanitarian aid."33 Aung San Suu Kyi and Commander-in-Chief Senior General Min Aung Hlaing on several occasions have denied that human rights abuses have occurred in Rakhine State. President Htin Kyaw has appointed a commission to investigate the recent violence in Rakhine State. Progress on other human rights issues has also been relatively slow, according to some observers. In her first official act as State Counsellor, Aung San Suu Kyi ordered the release of 113 political detainees on April 7, 2016, and indicated that freeing all political prisoners would be a priority for the new government.34 President Htin Kyaw granted amnesty to 70 political prisoners on April 17, 2016. By mid-August, the NLD-led government reportedly had released 457 people facing trial for political activities.35 According to the Assistance Association for Political Prisoners (Burma), a nonprofit human rights organization formed in 2000 by former political prisoners, there were 194 political prisoners in Burma as of December 31, 2016, as the Myanmar Police Force (which is under the authority of the Burmese military) continues to arrest, detain, and try people for political activities.36 some observers have suggested that the CSOs may play a vital role in the discussion of political reform and the peace process. Some fear that, according to some observers. One such observer expressed concern that national reconciliation, if left to the NLD-led government, the Burmese military, and the EAOs, national reconciliation maycould result in the establishment of a federation of "crony states," in which the current military leaders and their supporters in each region of Burma control both the political and economic systems, and prevent the establishment of a democratic civilian government based on the rule of law and the will of the Burmese people.27
Depending on what goals it sets for U.S. policy in Burma and its perspective on the current political situation in the country, Congress may decide to address the existing restrictions on U.S. relations. In the past, this has been done by passing specific legislation to impose or recommend restrictions on bilateral or multilateral relations, or by including provisions in appropriations legislation setting limits on bilateral or multilateral assistance to Burma. Congress has also passed legislation creatingthat places conditions on certain forms of bilateral relations contingent on acceptable behavior with regard to specific issues, such as the recruitment and induction of under-aged children into the military. In addition, Congress may actively or passively permit the President and the Executive Branchexecutive branch to determine what restrictions, if any, should be placed on relations with Burma, and provide the necessary authority and appropriations to implement U.S. policy toward Burma.
In the months remaining in the 114th Congress,Congress may have the opportunity to take action with respect to U.S. policy in Burma will arise on certain dates or at particular junctures. For example, on May 17, 2016, President Obama decided to continue the national emergency with respect to Burma, and thereby continued the restrictions on relations with Burma imposed by Executive Orders 13047, 13310, 13448, 13464, 13169, and 13651, including provisions that waive restrictions. Given the President's decision, Congress may decide if it wishes to take action to support or oppose his decision, as well as those measures announced by the State Department and Treasury Department on that same day.
Congressional on certain dates or at particular junctures. For example, congressional consideration of appropriations legislation—or continuing resolutions—also representprovides a legislative juncture when restrictions on relations with Burma may be considered and altered, if Congress determines it warrantedso chooses. The Obama Administration has submitted some suggested changes in the provisions of P.L. 113-114 for the fiscal year 2017FY2017 appropriations bill for the Department of State, foreign operations, and related programs.4238 Among those changes are the following:
These requested changes would relax some of the restrictions on U.S. assistance to Burma, particularly those pertaining to engagement with the Burmese military.
In addition, in his May 2016 speech to the Center for New American Security, Deputy National Security Advisor Ben Rhodes indicated that the Obama Administration was considering reinstating Burma as a beneficiary nation to the U.S. Generalized System of Preferences (GSP) program.43 Burma was removed from the GSP program on April 13, 1989, by Presidential Proclamation 5955. The President has the authority to designate a nation as a GSP beneficiary without the involvement of Congress. Congress may, however, consider legislation pertaining to Burma's reinstatement to the GSP program.
Starting in 1989 and continuing through 2008, Congress and the Executive Branchexecutive branch imposed a series of political and economic sanctions on Burma's ruling military junta. Since 2008, most of the congressional or executive actions have been to waive or eliminate some of those sanctions. The following table provides a list of such congressional or presidential actions in chronological order.
Chronology
|
Date |
Document |
Description |
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|
April 13, 1989 |
Presidential Proclamation 5955 |
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August 20, 1990 |
Section 138 of the Customs and Trade Act of 1990 (P.L. 101-382) |
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June 9, 1993 |
Public Notice 1820 |
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April 30, 1994 |
Section 431 of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (P.L. 103-236) |
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September 30, 1996 |
Section 570(a) of the Omnibus Consolidated Appropriations Act, 1997 (P.L. 104-208) |
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October 3, 1996 |
Presidential Proclamation 6925 |
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May 20, 1997 |
Executive Order 13047 |
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July 28, 2003 |
Burmese Freedom and Democracy Act (BFDA; P.L. 108-61) |
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July 28, 2003 |
Executive Order 13310 |
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October 23, 2007 |
Executive Order 13448 |
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April 30, 2008 |
Executive Order 13464 |
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July 29, 2008 |
The Tom Lantos Block Burmese JADE (Junta's Anti-Democratic Efforts) Act of 2008 (JADE Act; P.L. 110-286) |
|
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September 26, 2008 |
Presidential Proclamation 8294 |
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January 15, 2009 |
Presidential Determination 2009-11 |
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July 11, 2012 |
Executive Order 13619 |
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September 20, 2012 |
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August 6, 2013 |
Executive Order 13651 |
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Author Contact Information
| 1. |
See CRS Report R44436, Burma's 2015 Parliamentary Elections: Issues for Congress, by [author name scrubbed]. |
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| 2. |
See CRS Insight IN10464, Burma's Union Parliament Selects New President, by [author name scrubbed]. |
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| 3. |
ASEAN is the Association of Southeast Asian Nations. |
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| 4. |
Kyaw Hsu Mon, "Burma Govt Looks to Shed Burden of US Sanctions," Irrawaddy, February 19, 2016. |
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| 5. |
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For example, see Doug Bandow, "Burma on the Road to Democracy: How Far How Fast?," The World Post, April 23, 2016. |
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| 7. |
White House, "Notice—Continuation of the National Emergency with Respect to Burma," press release, May 17, 2016. |
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| 8. |
Department of the Treasury, "Treasury Amends Burmese Sanctions Regulations, Identifies Blocked Companies Owned by Designated Persons, and Delists Several Burmese State-owned Entities," press release, May 17, 2016. |
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| 9. |
Department of State, "Joint Press Availability with Burmese Foreign Minister Daw Aung San Suu Kyi," press release, May 22, 2016. |
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| 10. |
For example, Section 7043(b) of the Consolidated Appropriations Act, 2016 (P.L. 114-113) establishes a number of restrictions on bilateral, international security, and multilateral assistance to Burma. Similar restrictions were included in the Consolidated Appropriations Act, 2012 (P.L. 112-74); the Consolidated Appropriations Act, 2014 (P.L. 113-76); and the Consolidated and Further Continuing Appropriations Act, 2015 (P.L. 113-235). |
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|
See Appendix. For more about the history of the imposition of sanctions, see CRS Report R42939, U.S. Sanctions on Burma: Issues for the 113th Congress, by [author name scrubbed]. |
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For example, the Public International Law & Policy Group (PILPG) published a report of Burma's constitutional referendum on May 26, 2008, sharply criticizing the conduct of the plebiscite, calling the results, "Neither Free nor Fair." (The Public International Law & Policy Group, Burmese Constitutional Referendum: Neither Free Nor Fair, May 2008). For more about the circumstances under which the constitutional referendum was held, see CRS Report RL34481, Cyclone Nargis and Burma's Constitutional Referendum, by [author name scrubbed] and [author name scrubbed]. |
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For more information, see CRS Report R43035, U.S. Policy Towards Burma: Issues for the 113th Congress, by [author name scrubbed]. |
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| 14. | The USDA, or Union Solidarity and Development Association, was an organization formed in 1992 by Burma's military junta to operate as the eyes and ears of the military junta at the local level. In March 2010, the USDA was transformed into a political party, the Union Solidarity and Development Party (USDP). For more information about political prisoners in Burma, see CRS Report R42363, Burma's Political Prisoners and U.S. Sanctions, by [author name scrubbed]. |
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|
For more information about the election, see CRS Report R44436, Burma's 2015 Parliamentary Elections: Issues for Congress, by [author name scrubbed]. 8.
|
|
White House, "Joint Statement between the Republic of the Union of Myanmar and the United States of America," press release, September 14, 2016. The revoked Executive Orders were E.O. 13047, E.O. 13310, E.O. 13448, E.O. 13464, E.O. 13619, and E.O. 13651. 9.
|
|
Executive Office of the President, "Presidential Determination Pursuant to Section 570(a) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997," Presidential Determination 2017-04, December 2, 2016. 10.
|
|
The Union Solidarity and Development Association (USDA) was formed in 1992 by Burma's military junta to operate as the eyes and ears of the military junta at the local level. In 2010, the USDA was transformed into a political party, the Union Solidarity and Development Party (USDP). |
Executive Order 13651, "Prohibiting Certain Imports of Burmese Jadeite and Rubies," 78 Federal Register, August 9, 2013. |
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| 16. | |||||||||||||||||||||||
| 17. |
Priscilla A. Clapp, Securing a Democratic Future for Myanmar, Council on Foreign Relations, Council Special Report No. 75, New York, NY, March 2016. |
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| 18. |
For purposes of this act, a U.S. person is defined, by Section 3(6) as "any United States citizen, permanent resident alien, juridical person organized under the laws of the United States (including foreign branches), or any person in the United States." |
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| 19. |
Presidential Determination 2009-11, "Limited Waiver of Certain Sanctions Imposed by, and Delegation of Certain Authorities Pursuant to, the Tom Lantos Block Burmese JADE (Junta's Anti-Democratic Efforts Act of 2008," 74 Federal Register 3957-8, January 15, 2009. |
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| 20. |
For more about these provisions in the USA PATRIOT Act, see CRS Report RL31377, The USA PATRIOT Act: A Legal Analysis, by [author name scrubbed]. |
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| 21. |
Department of the Treasury, "Imposition of Special Measures Against Burma," 69 Federal Register, April 12, 2004. |
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| 22. |
Department of the Treasury, "Burmese Sanctions Regulations; Final Rule," 79 Federal Register, June 30, 2014. |
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|
Ma Ba Tha is a Burmese acronym for the "Association for the Protection of Race and Religion" (also translated as the "Organization for the Protection of Race and Religion"), a Buddhist nationalist organization that seeks to preserve Burma's Theravada Buddhist culture, and opposes the further spread of Islam in Burma. Ma Ba Tha has been accused of encouraging violence against Burma's Muslim population. |
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Department of State, "Suspension of Munitions Export Licenses to Burma," 58 Federal Register 33293, June 16, 1993. |
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| 26. |
Executive Order 13651, "Prohibiting Certain Imports of Burmese Jadeite and Rubies," 78 Federal Register 48793-4, August 9, 2013. |
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| 27. |
For example, in his statement of May 17, 2012, President Obama said, "We are also maintaining our current authorities to help ensure further reform and to retain the ability to reinstate selected sanctions if there is backsliding." The White House, "Statement by the President on Burma," press release, May 17, 2012, https://www.whitehouse.gov/the-press-office/2012/05/17/statement-president-burma. |
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| 28. |
Department of State, "Allowing New Investment in Burma," 77 Federal Register 62596, October 15, 2012. |
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| 14.
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White House, "Presidential Determination—Pursuant to Section 570(a) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997," press release, December 2, 2016. 15.
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For purposes of this act, a U.S. person is defined, by Section 3(6) as "any United States citizen, permanent resident alien, juridical person organized under the laws of the United States (including foreign branches), or any person in the United States." 16.
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Department of State, "Allowing New Investment in Burma," 77 Federal Register 62596, October 15, 2012. 17.
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Department of State, "Determination Related to United States Support for Assistance Provided by International Financial Institutions for Burma," October 12, 2012. 18.
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White House, "Presidential Determinations with Respect to the Child Soldiers Prevention Act of 2008, and Delegation of Authority Under Section 404(c) of the Child Soldiers Prevention Act of 2008," press release, September 28, 2016. For more about this waiver, see CRS Insight IN10595, President Waives Restrictions on Relations with Burma's Military under Child Soldier Prevention Act of 2008, by [author name scrubbed] and [author name scrubbed]. 19.
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Burma was one of 10 nations included in the State Department's 2016 Child Soldiers Prevention Act List. For more about child soldiers in Burma, see Child Soldiers International, "Ongoing Underage Recruitment and Use by the Myanmar Military and Non-State Armed Groups," March 2016. |
Lally Weymouth, "Aung San Suu Kyi: 'I'm Going to Be the One Who Is Managing the Government,'" Washington Post, November 19, 2015. |
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Shibani Mahtani, "U.S. Companies Caught in Sanctions Gray-Zone in Myanmar," Wall Street Journal, March 28, 2016. |
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Department of State, "Joint Press Availability with Burmese Foreign Minister Daw Aung San Suu Kyi," press release, May 22, 2016. |
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| 37. |
Department of the Treasury, "Treasury Amends Burmese Sanctions Regulations, Identifies Blocked Companies Owned by Designated Persons, and Delists Several Burmese State-owned Entities," press release, May 17, 2016. |
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| 38. |
For details of the RIRR program, see http://burma.usembassy.gov/reporting-requirements.html. |
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| 39. |
National Security Council, "Remarks on Burma Policy," press release, May 17, 2016. |
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| 40. |
Department of State, "Joint Press Availability with Burmese Foreign Minister Daw Aung San Suu Kyi," press release, May 22, 2016. |
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| 41. |
Andrew D. Kaspar, "New US Ambassador Flags Many Old Problems for Burma," Irrawaddy, May 10, 2016. |
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| 42. |
See https://www.whitehouse.gov/sites/default/files/omb/budget/fy2017/assets/sta.pdf. |
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| 43. |
For more about the GSP program, see CRS Report RL33663, Generalized System of Preferences: Overview and Issues for Congress, by [author name scrubbed]. |
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| 28.
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See CRS Insight IN10566, Burma Holds Peace Conference, by [author name scrubbed]. 29.
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See CRS In Focus IF10417, Burma's Peace Process: Challenges Ahead in 2017, by [author name scrubbed]. 30.
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For more information, see United Nations Human Rights Office of the High Commissioner, "Interviews with Rohingyas Fleeing from Myanmar Since 9 October 2016: Report of OHCHR Mission to Bangladesh," Flash Report, February 3, 2017. 31.
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"Myanmar Lodges Protest over UNHCR Official's Critical Rakhine Comments," Myanmar Times, November 28, 2016. 32.
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"Aid, Media Access to Rakhine 'Soon,'" Global New Light of Myanmar, December 7, 2016. 33.
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State Department, "Daily Press Briefing," press release, November 15, 2016. 34.
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Sai Wansai, "Burma's Political Tug of War," Shan Herald Agency for News, April 18, 2016. 35.
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"NLD Govt Has Released 457 Political Prisoners," Democratic Voice of Burma, August 18, 2016. 36.
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Assistance Association for Political Prisoners (Burma), December Chronology 2016, January 18, 2017. 37.
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Human Rights Watch, They Can Arrest You at Any Time, The Criminalization of Peaceful Expression in Burma, June 2016. 38.
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See https://www.whitehouse.gov/sites/default/files/omb/budget/fy2017/assets/sta.pdf. |
"A United States person" is defined as "any United States citizen, permanent resident alien, juridical person organized under the laws of the United States (including foreign branches), or any person in the United States." |