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The BurmaNet News: May 1, 1998
- Subject: The BurmaNet News: May 1, 1998
- From: strider@xxxxxxxxxxx
- Date: Fri, 01 May 1998 14:00:00
------------------------ BurmaNet ------------------------
"Appropriate Information Technologies, Practical Strategies"
The BurmaNet News: May 1, 1998
ABSDF: LONG JAIL TERMS FOR ETHNIC LEADERS AND STUDENTS
AI: URGENT ACTION ON DEATH PENALTY CASES
FBC: 3-DAY FAST TO GET ARCO OUT OF BURMA BEGINS MAY 3
SPOTLIGHT (NEPAL): SEEKING SUPPORT
ANALYSIS: INVESTING FOR A BETTER WORLD
BAG (ANALYSIS): UK FOREIGN POLICY, UNILATERAL SANCTIONS
ALL BURMA STUDENTS' DEMOCRATIC FRONT: ETHNIC LEADERS AND FEMALE STUDENTS
GIVEN LONG JAIL TERMS FOR AIDING STUDENT HISTORIAN
30 April, 1998
The Peace and Development Council (SPDC) sentenced Dr. Maung Maung Kyaw and
two other ethnic leaders to 10 years imprisonment for assisting a student
historian in his work to write a history of the Burmese student movement.
The military regime also sentenced two female student leaders to seven-year
prison terms under the same charge.
Dr. Maung Maung Kyaw was arrested in late February this year, along with
the two female student leaders, Suu Suu Win and Khin Moe Aye, and ethnic
leaders U Tha Ban and Khun Sai. All five were accused of supplying
historical background and other information to student leader Aung Htun who
wrote a history of the Burmese student movement.
Aung Htun, who is a Central Executive Committee (CEC) member of the All
Burma Federation of Students Union (ABFSU), was given 15 years jail in
March this year for writing the book.
Dr. Maung Maung Kyaw and the other four were charged under Section 5(j) of
the 1950 Emergency Provision Act and under Section 17 (20) of the 1962
Printers and Publishers Registration Act. Suu Suu Win and Khin Moe Aye were
each given seven years, while Dr. Maung Maung Kyaw and the other two ethnic
leaders were sentenced to 10 years imprisonment by a Special Court in early
April this year. All five were refused access to legal counsel.
Dr. Maung Maung Kyaw is a well-known and respected lawyer and is the patron
of the Society for International Friendship (Union of Burma). He was first
arrested in 1989 for working with Daw Aung San Suu Kyi in carrying out
political defiance work and was released in April 1992.
Suu Suu Win and Khin Moe Aye were first arrested in December 1991 for
leading a student demonstration at Rangoon University, and demanding the
release of Daw Aung San Suu Kyi from house arrest. The two were jailed for
10 years each but were released in May 1992.
U Tha Ban is a journalist and lawyer, and a CEC member of the Union
National League for Democracy (UNLD), a coalition of legal ethnic political
parties allied with the National League for Democracy (NLD). He was first
detained in January 1991 and given a five-year prison term under Section
5(j) of the 1950 Emergency Provision Act. He was released in February 1995.
This is the third time Khun Sai has been jailed in the past 25 years. He
was given a seven-year prison sentence for his role in the 1974 U Thant
Funeral Strike by the then Burma Socialist Programme Party (BSPP), and in
November 1989 he was detained for his political activities and sentenced to
five years imprisonment. He was released in 1993.
For more information please call 01-654 4984.
AMNESTY INTERNATIONAL: URGENT ACTION ALERT ON DEATH PENALTY CASES IN MYANMAR
30 April, 1998
Urgent Action 138/98 Death Penalty
Ko Htein, age 44
Naing Aung, age 31
Thant Zaw Swe, age 31
Myint Han, age 44
Khin Hlaing, age 44
Let Yar Htun, age 29
The above-named men are the first-known political prisoners to have
received the death penalty in several years. There are grave concerns that
these sentences set an ominous precedent.
According to a State Peace and Development Council (SPDC) statement --
Myanmar's military government -- four of the six men are members of the All
Burma Students' Democratic Front (ABSDF). This is an opposition group
established in exile predominantly by former students who fled Myanmar
after the 1988 pro-democracy movement was suppressed by the military.
Although initially an armed opposition group it recently announced it had
abandoned its armed struggle against the government. Despite this the SPDC
claims that: "Four of them were from the ABDSF armed terrorist group caught
inside the country (Myanmar) with explosives for sabotage activities and
the other two were recruited from within the country (Myanmar)."
In a press conference on 1 March, 1998, the SPDC also alleged that the
ABSDF, together with the All Burma Students Union, the National League for
Democracy (NLD) -- the major opposition party in Myanmar led by Daw Aung
Dan Suu Kyi -- and the defunct Burma Communist Party all conspired to
"instigate public unrest". Furthermore, it claimed that ABSDF member Ko
Htein was involved in a plot to assassinate state leaders and blow up
public buildings. Than Zaw Swe, Naing Aung, Myint Han, Let Yar Htun and
Khin Hlaing were also alleged to be involved in anti-government activities.
The six men are among a group of 39 people arrested in connection with the
alleged anti-government "plot". Myint Han is believed to be a Buddhist monk
known as U Sandar Thiri and a member of the Young Monks Association. Let
Yar Htun, imprisoned from 1991 to 1995, Naing Aung and Than Zaw Swe are
ABSDF members. Khin Hlaing is a former teacher and NLD member who was
imprisoned in 1991 for allegedly having contact with the ABSDF. All are
believed to have been arrested in January.
The ABSDF denies its members were involved in violent activities,
clarifying that they only carry out peaceful political activities. It also
states that none of the 39 people arrested were given legal representation
during their trial in early April at a special court inside Insein Prison.
The SPDC refutes this.
Amnesty International is opposed in principle to the application of the
death penalty. The organization considers the death penalty to be the
ultimate form of cruel, inhuman and degrading punishment and a violation of
the right to life enshrined in international human rights instruments.
The method of execution in Myanmar is usually by hanging. Although no
executions are known to have taken place in the last few years some 20
political prisoners have died in custody. Myanmar army troops also
regularly extrajudicially execute members of ethnic minorities in
Please send telegrams/telexes/express/airmail letters in English or your
- expressing grave concern that the State Peace and Development Council
(SPDC) has sentenced Ko Htein, Naing Aung, Thant Zaw Swe, Myint Han, Khin
Hlaing and Let Yar Htun to death;
- asking the SPDC to commute these death sentences;
- seeking assurances that these six men will not be executed;
- calling on the SPDC to abolish the death penalty.
Lieutenant General Khin Nyunt, Secretary 1 State Peace and Development
c/o Director of Defence Services Intelligence (DDSI)
Ministry of Defence, Signal Pagoda Road
Dagon Post Office
Yangon, Union of Myanmar
Telegrams: General Khin Nyunt, Yangon, Myanmar
Faxes: + 95 1 229 50
Salutation: Dear General
Senior General Than Swe, Chairman
State Peace and Development Council
c/o Director of Defence, Signal Pagoda Road
Dagon Post Office
Yangon Union of Myanmar
Copies to: diplomatic representatives of Myanmar accredited to your country.
Please send appeals immediately. Check with the International Secretariat
or your section office, if sending appeals after 11 June 1998.
# # #
State Peace and Development Embassies
FAX NUMBERS (list early 96)
Bangkok (+66-2) 236-6898
Beijing (+86-1) 532-1344
Belgrade (+38-11) 235-1802
Bonn (+49-228) 219-316
Cairo (+202-43) 16793
Canberra (+61-6) 273-4357
Colombo (+94-1) 580-460
Dhaka (+88-2) 883-740
Geneva (+41-22) 738-4882; Tel 731 7540
Hanoi (+84-2) 52404
Hong Kong (+852) 827-6597
Islamabad (+92-51) 820-123
Jakarta (+62-21) 327-204
Kathmandu (+977-1) 523-402
Kuala Lumpur (+60-3) 456 8320; Tel 456 0280
London (+44-171) 629-4169
Manila (+63-2) 817-5895
Moscow (+7-095) 63186
New Delhi (+91-11) 687-7942
New York (+1-212) 737-2421; Tel 535 1310
Ottawa (+1-613) 232-6435
Paris (+33-1) 4256-4941
Rome (+39-6)841 3167
Seoul (+82-2) 796-5570
Singapore (+65) 235 5963
Tel Aviv (+972-3) 549-3866
Tokyo (+81-3) 3447-7394
Washington, D.C. (+1-202) 332-9046
FREE BURMA COALITION: WORLDWIDE FAST FOR FREE BURMA BEGINS MAY 3
1 May, 1998
FOR IMMEDIATE RELEASE
Contact: Kevin Rudiger <bfla@xxxxxxxxxxxxx>
Fast Target's ARCO Oil's Support for Burmese Military Dictatorship
Los Angeles - Supporters of human rights and democracy in Burma in 25
cities across 4 countries around the world begin a three day fast on
Sunday, May 3, to protest investment in Burma by the Atlantic Richfield
Company (ARCO) that provides crucial financial backing to the country's
The fast is the latest public protest against ARCO's investment in Burma,
and will center around a May 4 demonstration at the site of ARCO's annual
shareholder meeting in Los Angeles.
"Hundreds of people will be joining the fast and the demonstration," said
Sapna Chhatpar, one of the fasters and a member of the Washington, DC,
American University Free Burma Coalition. "Our message to ARCO is very
simple: stop supporting this murderous regime."
"Burma's democratically elected leadership has repeatedly called on
corporations like ARCO to withdraw from Burma immediately,' said Khin Maung
Shwe, a Burmese exile living in Los Angeles, who will join the fast. "By
continuing to invest in Burma, ARCO is only helping to prop up a brutal
army junta which is terrorizing my country."
ARCO is today under increasing pressure to end its investment in Burma. The
oil giant has been the target of dozens of demonstrations at its Los
Angeles corporate headquarters as well as at ARCO gas stations. In
addition, ARCO employees have filed a shareholder resolution which asks
that the company investigate the connection of ARCO's investment to money
laundering from the drug trade.
The United Nations and Amnesty International issued separate reports in
mid-April detailing an appalling array of continuing human rights abuses,
including massacres, torture and rape by Burma's military junta. Burma is
also the world's single largest heroin producer. In 1996, over 60% of all
heroin seized on the streets of U.S. cities originated in Burma. The US
State Department annual narcotics report issued in March charges that at
minimum Burma's generals have done little to stop the drug trade, and other
analysts believe they profit enormously from the trade.
ARCO is currently lobbying heavily against a proposed Free Burma ordinance
with the Los Angeles City Council. The proposed law, modeled after the
City's anti-apartheid law passed in the 1980's, would limit city contracts
for business partners of the Burmese military junta. 18 US Cities and the
State of Massachusetts already have passed such laws. At a recent Los
Angeles City Council committee hearing on the issue, George Ross, Manager
of Corporate External Affairs for ARCO attempted to defend his company's
investment in Burma by arguing that, "You can only find oil and gas where
it is. Unfortunately, a lot of the times these are countries with rotten
regimes that are politically repressive, that are undesirable, but oil is
where it is. You have to figure out a way to do business with these people
and hope that they change."
Aside from heroin, Burma's oil and gas reserves provide one of the largest
sources of foreign investment, helping the junta to maintain power. ARCO
has given the junta at least $11 million dollars, $6 million of which was
in the form of a no-questions-asked "contract bonus." ARCO's contract with
SLORC includes a "gag rule" barring the company from even meeting with
The Free Burma Coalition, a network of 100 college and high school campus
groups and 40 independent organizations from 15 countries, is organizing a
boycott of ARCO, demanding that the company withdraw all investment from
SPOTLIGHT (NEPAL): SEEKING SUPPORT
1 May, 1998
By Deepak Khanal in Chitwan
The visit of a group Burmese pro-democratic movement activists highlights
the plight of the Burmese people
After the Bhutanese refugees, this time it is some Burmese who visited
Nepal seeking support for their democratic movement. At a time when
Nepalese intellectuals and government officials failed to repatriate the
Bhutanese refugees with the democratic regimes, none expect long term
support for the Burmese in Nepal.
Whatever the consequences may be, a group of pro-democracy activists have
come to Nepal on a mission to seek Nepal's support for the Burmese
After the military take over, the Burmese pro-democracy activists fled
living on the Indian Burma and Thai Burma borders. The visiting members
identified themselves as members of the National League for Democracy (NLD)
led by Nobel Prize winner Aung San Suu Kyi.
After gaining independence from Britain in 1948, Burma was ruled by the one
party Burmese Socialist Program Party from 1962 to 1988. The Burmese
military ruler denied the transfer of power to the NLD which won 82 per
cent of the parliamentary seats in the elections held in 1990 under the
leadership of Nobel Peace Prize winner Aung San Suu Kyi.
Defying the people's mandate, the military junta arrested many of the
elected MPs and thousands of pro-democracy activists. The struggle for
democracy in Burma needs international support, because all activities of
the legal political parties are rigorously prohibited inside Burma. "More
then 3,000 political prisoners are still behind bars," said a statement
issued by the visiting group.
Justifying the need for international support for the Burmese democratic
movement, the group urged Nepal to fully support their struggle. They
argued that Nepal had launched similar struggle for democracy less than ten
years ago, thus, Nepal should support them.
Speaking to the Spotlight correspondent, a democratic activist of Burma,
presently in Nepal, said that in Burma the people's right of freedom has
been taken away by the military government. The political parties there are
not allowed to exercise their rights and the people are deprived of their
of expression, assembly and publication, and elected representatives are
continuously arrested. And at present more than 3,000 political prisoners
are behind bars.
Asked whether the Burmese government has been positive about democracy
these days, the activists replied, "Not long ago, the government changed
its name, but there has been no change in terms of its policies, motives
The Burmese government rules the country, without people's mandate as they
have the army at their disposal. "They impose military laws and the people
are deprived of taking part in political process."
Speaking to me in details, the activist painted a very dismal picture and
said "the only solution to the problem in Burma is democracy. Democracy is
designed to represent the people, not rule over them, and it is also
designed to protect the people's human rights, something which is now
desperately lacking in Burma. This belief is inspiring me and others to
fight for democracy."
The activist belongs to the National League for Democracy (NLD), the party
led by Aung San Suu Kyi. "But it is not the only party fighting for
democracy in Burma. We had a number of allies, but all of them were
expelled. With the leadership of the NLD, a parallel coalition government
has been formed in exile with some other ethnic parties," he said.
"In spite of the fact that some of the ethnic parties were compelled to
give up their arms, they are still morally in favor of democracy," the
activist said. "I hope that those allies who were compelled to surrender
will also support the movement for Burma's democracy in future."
"The Burmese people love democracy. This was proven in the results of the
1990 election. The people continue to show their frustration with the
military regime in different ways. The Burmese people never supported the
military regime and conducted a number activities and movement within
Burma," the activist said.
ANALYSIS: INVESTING FOR A BETTER WORLD
15 April, 1998
By Simon Billenness
(BurmaNet Editor's Note: On April 30, the corporate-funded National Foreign
Trade Council (NFTC) filed a lawsuit challenging the Massachusetts Burma
selective purchasing law. This lawsuit, if successful, would greatly
restrict citizens' freedom to direct how elected local officials spend
their tax money.)
Companies Take to the Courts Case Against Burma Law Now Likely
On February 12, the Cato Institute held a policy forum entitled "Are State
and Local Sanctions Against Burma Constitutional?" As the Burmese military
junta's ambassador looked on, James Schmahmann of Nutter, McClennen & Fish
and Frank Kittredge, President of the National Foreign Trade Council
denounced the growing number of state and local Burma selective purchasing
laws as unwise and unconstitutional.
Kittredge was defiant. The National Foreign Trade Council stood ready to
"fire its catapult" and sue Massachusetts on the grounds that the state's
Burma selective purchasing violates the Constitution.
The potential lawsuit represents a new and disturbing aggressiveness by
corporations towards both human rights and state sovereignty. "The major
concern that we have is that this suit represents a new attitude on the
part of American corporations," said Massachusetts State Representative and
Burma law sponsor, Byron Rushing, to the Boston Globe. "The signal that is
going to go out to human rights activists is that these corporations are
not going to work with people who are trying to restore human rights. I
think that this is going to be a public relations nightmare for these
Case for Sanctions Builds
Ironically, this new corporate legal offensive against Burma laws comes at
a time when the case for sanctions on Burma is increasingly clear and
The principal proponent for economic sanctions on Burma is Nobel Peace
Prize laureate Aung San Suu Kyi and her party, the National League for
Democracy (NLD). The NLD won over 80% of the seats in the 1990 Burmese
elections but the ruling military junta refused to allow the elected
representatives to take up their seats or form a government. Several
representatives who managed to escape death or imprisonment in Burma fled
the country and formed the National Coalition Government of the Union of
Burma (NCGUB), a democratic government-in-exile. The NCGUB has echoed Aung
San Suu Kyi's call for sanctions and its members have traveled the world to
promote the cause of democracy in Burma.
Recently, in a rare interview from her home in Rangoon, Aung San Suu Kyi
reiterated her support for sanctions to a reporter from Business Week. Aung
San Suu Kyi stated that: "There are those who claim that the people of
Burma are suffering as a consequence of sanctions, but that is not true."
She added: "We want investment to be at the right time - when the benefits
will go to the people of Burma, not just to a small, select elite connected
to the government."
The combination of economic sanctions and the Asian economic crisis has
dealt the Burmese economy a severe blow. The country currently faces an
acute shortage of foreign exchange and inflation of nearly 50%. In
response, Burma's ruling junta has greatly restricted imports and revoked
the foreign exchange licenses of nine private banks.
When the Clinton Administration announced in April 1997 that it would ban
new U.S. investment in Burma, the military junta argued that corporations
based in the neighboring ASEAN countries would simply buy out U.S.
interests. This view was born out later that year, when Petronas of
Malaysia purchased an interest in an offshore gas field previously owned by
Texaco. However, since the Asian economic crisis took hold, ASEAN companies
no longer have the means to buy out American interests in Burma. On a March
visit to Burma, the Malaysian Prime Minister Mahathir Mohamad stated that
Malaysia was no longer interested in investment in Burma, only trade.
Faced with mounting evidence of the effects of sanctions, the military
junta is changing its tactics. In January, Lt. General Khin Nyunt
acknowledged that sanctions and other "machinations" were hurting Burma's
"very fragile" economy. However, this has simply led the junta to make
cosmetic changes. Business entities have suddenly stumped up hundreds of
thousands of dollars to hire two American public relations firms, Jefferson
Waterman and Bain & Associates, to lobby against U.S. economic sanctions
and rebuild the junta's shattered image. In the course of this makeover,
the junta changed its name from the ominous "State Law and Order
Restoration Council" to the kinder and gentler "State Peace and Development
Several observers have noted that the effect of sanctions and the economic
downturn have caused many in the junta to slip back into the army's old
policy of economic isolationism. However, the military's last experiment in
economic "self-reliance," which the country endured from 1962 to 1988,
ended in economic collapse and widespread pro-democracy demonstrations in
the streets. To resume a policy of economic isolation would put the Burmese
economy in a nose-dive, quite possibly leading to new protests in the
streets that would quickly take on a political tone.
On the other hand, some Burma-watchers argue that elements within the army,
which benefit from foreign investment and trade, would not allow a
resumption of economic isolationism. The question now remains, when will
these potential voices of reason recognize the need for political reform?
Aung San Suu Kyi has called for sanctions as a means of pressing the
military junta to come to the negotiating table. Until the junta can show
that it is engaged in good faith dialogue with leaders of the Burmese
democracy movement, the pressure for sanctions will increase.
Purchasing Laws Proliferate
In the past year, the number of Burma selective purchasing laws has
continued to climb. Such laws effectively bar a city, county or state from
buying goods or services from companies that do business in Burma. In 1997,
eight more U.S. cities adopted Burma laws, including Chapel Hill (NC),
Santa Cruz (CA), Quincy (MA) and New York City. In the U.S., 18 cities, one
county and one state have enacted Burma selective purchasing laws.
Campaigns are currently underway to add Los Angeles, Minneapolis, New York
State, Seattle and Vermont to the list.
On March 17, the Free Burma movement scored a major new success. On that
day, the Marrickville Council in New South Wales, Australia, voted
unanimously to become the first local authority outside the United States
to enact a Burma selective purchasing law. Hoping to spark a movement, the
Marrickville Council also pledged to encourage other councils and shires in
Australia to enact similar laws.
The tactic is also being increasingly adopted by other causes. In the San
Francisco Bay Area, Berkeley, Oakland and Alameda County have adopted
selective purchasing laws that target companies that do business in
Nigeria. Berkeley also targets companies in Tibet whose operations in that
country have earned the specific disapproval of the Tibetan
In response, corporations have stepped up their campaign against selective
purchasing laws - with mixed success. Lobbying by Atlantic Richfield (ARCO)
and Unocal helped defeat a California Burma bill in committee. Unocal has
also lobbied against such a law in Texas, while United Technologies
submitted opposing testimony at hearings in Connecticut. The corporate
anti-sanctions group, USA-ENGAGE, keeps overall track of state and local
selective purchasing laws on its website at www.usaengage.org.
However, in Seattle, the Washington Council on International Trade - a
trade association that includes Boeing, Microsoft and Weyerhaeuser -
submitted a misleading letter to then-Seattle Council President Jan Drago.
The letter falsely claimed that, because of its Burma law, the city of
Berkeley could no longer buy from IBM or Motorola - a claim later disproved
by Berkeley's purchasing division. The trade association also claimed that
"Berkeley cannot buy gasoline from major companies, and thus is relegated
to low-grade gas." In fact, Berkeley buys gas from Golden Gate Petroleum,
which obtains it from Tosco - one of the largest refiners in the U.S. After
disproving these false claims, the Seattle Burma Roundtable now expects the
city council to enact a Burma law later this year.
The Legal Threats
Having failed to stop the growth in the number of Burma laws through
lobbying, corporations are increasingly turning to other means. European
and Japanese corporations have pressed their governments to challenge the
Massachusetts selective purchasing law at the World Trade Organization
(WTO). American companies are actively planning a federal lawsuit.
The European Commission and the Japanese government continue to threaten to
take the Massachusetts Burma law to the WTO. However, Massachusetts and the
Clinton Administration continue to hold firm in defense of the law.
Massachusetts State Rep. Byron Rushing (D, Boston) has offered to amend
the law to bring it into compliance with the WTO Government Procurement
Agreement (GPA), which bars the use of "political" criteria in assigning
most federal and state contracts. However, Rep. Rushing has asked the
European Union to enact tougher sanctions on Burma in return for any
As yet, the European Commission has shied away from even the appearance of
negotiating with Massachusetts in this dispute. Even if the Massachusetts
Burma law is amended, the law would retain much of its bite. Many state
authorities with considerable spending powers, such as Massport and the
Massachusetts Bay Transportation Authority - which are covered by the Burma
law - are not covered by the WTO GPA. In addition, the WTO GPA also covers
contracts over $500,000 for goods or services and $7 million for
construction, while many state contracts are for lesser amounts. Meanwhile
municipal Burma laws, many of which like the Massachusetts law, also carry
large economic clout, would remain unchallenged and unaffected.
The real threat to selective purchasing laws comes from the lawsuit
proposed by American companies. According to an internal memo reprinted in
Inside US Trade, the National Foreign Trade Council plans to file lawsuits
against Massachusetts and another unspecified jurisdiction - believed to be
New York City -alleging that state and local Burma selective purchasing
laws are unconstitutional. If successful, these lawsuits could wipe out all
existing selective purchasing laws.
The Case Against
The case against state and local selective purchasing laws is three-fold.
First, corporations argue that state and local selective purchasing laws
encroach upon U.S. foreign policy. The Constitution, they argue, reserves
foreign policy for the federal government under the Supremacy Clause.
Secondly, the Constitution prohibits states or localities from regulating
or taxing commerce if such actions burden interstate or foreign commerce.
In a phrase oft quoted by corporations, the Supreme Court has stated that
the nation must "speak with one voice" in its regulation of foreign commerce.
Finally, the Constitution states that the laws and treaties of the United
States are "the Supreme Law of the Land" and pre-empt state and local laws.
Corporations contend that the federal ban on new investment in Burma,
enacted into law in 1996, pre-empts any additional measures against
companies doing business in Burma enacted by cities or states.
The Case in Favor
If companies were truly concerned about state and local influence on
foreign policy and commerce, they would have to challenge more than just
selective purchasing laws. Governors and Mayors have traditionally held
considerable influence over foreign policy and commerce through
establishing cultural exchanges and sending trade missions to foreign
countries. Of course, corporations stand to benefit when their executives
accompany state officials on trade delegations. The fact that companies
support such measures that benefit them undermines their credibility as
disinterested defenders of federal prerogatives over foreign policy.
It is also debatable whether the Constitution truly bars state and local
involvement in foreign policy. In the Spring 1992 issue of Foreign Policy
magazine, Michael Shuman argues that the Founding Fathers created a
constitution that sought only to curb the excesses of the states' foreign
policy - not to eliminate it altogether. The Constitution, in fact, grants
only a few narrowly defined powers concerning foreign policy to the federal
government. According to the 10th Amendment: "The powers not delegated to
the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people."
In defense against any challenge under the Commerce Clause, cities and
states are likely to cite the "market participant doctrine." This exception
to the Commerce Clause essentially grants cities and states broad latitude
when they participate in the marketplace for goods and services in the same
way that people do. In brief, states have the same rights as any other
consumer to choose with whom they do business. This defense may sit well
with federal judges who are increasingly less willing to allow the federal
government to micromanage areas of policy - such as procurement - that
clearly fall under the umbrella of state sovereignty.
Another possible defense lies within the Constitution. The Supreme Court
has increasingly ruled that the spending of money, whether by corporations
on advertising or by candidates for political office on their own
campaigns, is an exercise of free speech and is, therefore, protected under
the First Amendment. Building on previous rulings, a case could certainly
be made that state and local selective purchasing laws are also a
constitutionally-protected expression of free speech.
Defend Your Rights
The corporate attack on selective purchasing laws is an attack on the
fabric of our democratic system of government. One of the building blocks
of our democracy is that we elect those officials who raise our taxes and
spend our money. If corporations or foreign bureaucrats take away some of
those powers from our elected representatives, it takes away those powers
from us, the people.
Aung San Suu Kyi once asked the international community: "Please use your
liberty to help us secure ours." As we defend against the corporate attack
on selective purchasing laws, we can appreciate how our own liberty is
inseparable from that of the Burmese people.
Copies of this article are available from:
Franklin Research & Development Corporation
711 Atlantic Avenue
Boston, MA 02111
(617) 482-6179 (fax)
BURMA ACTION GROUP - UK (ANALYSIS): UK FOREIGN POLICY ON BURMA: A LEGAL
ANALYSIS OF UNILATERAL SANCTIONS
24 April, 1998
The aim of this paper is to address a key foreign policy issue related to
Burma - that is, whether it is legally possible for a member state of the
European Union to impose unilateral sanctions on the regime in Rangoon. UK
government statements on Burma have suggested a willingness to consider the
use of sanctions on the regime in order to encourage a process of
democratic reform. However, the UK government has also said that
unilateral investment sanctions would be legally difficult to impose.
The Burma Action Group UK (BAG UK) recently commissioned Steve Peers of
Essex University's Human Rights Centre and Director of its Centre for
European Commercial Law to provide a legal analysis of the possibilities
for sanctions against Burma. His paper concludes that financial sanctions
(particularly a ban on direct investment) by individual member states of
the European Union would likely be legal.
We hope the analysis provided below will assist the UK government and
others within Europe in their pursuit of financial sanctions against the
dictatorship in Burma.
The UK's ethical foreign policy
The following are extracts from the Foreign Office's mission statement
issued May 12, 1997:
Quality of Life: We shall work with others to protect the World's
environment and to counter the menace of drugs, terrorism and crime;
Mutual Respect: We shall work through international forums and bilateral
relationships to spread the values of human rights, civil liberties and
democracy which we demand ourselves.
To use the status of the United Kingdom at the United Nations to secure
more effective international action to keep the peace of the world and to
combat poverty in the world.
Government statements on Burma
We have not ruled out the possibility of full economic sanctions, but there
are considerable legal difficulties involved in introducing unilateral or
EU sanctions, or an investment ban, without cover of a UN resolution. -FCO
letter 30 January, 1998.
The Government are considering the full range of measures at our disposal
in order to put further pressure on SLORC. As to the question of further
economic sanctions we have not ruled out the possibility of further
measures, including economic sanctions." In answer to a question about the
US imposition of a ban on new investment - "We are of course aware of
considerable difficulties involved in imposing unilateral or EU economic
sanctions without the cover of a UN Security Council Resolution. It is
also difficult to enact legislation banning new investment". - Foreign
Office Minister, Baroness Symons in the House of Lords June 23, 1997
"Burma is the largest single world producer of opium, and it has achieved
that infamous position precisely because it is a government that does not
act against drug barons. It is not only a deeply repressive regime, but it
is also a deeply irresponsible regime in that it is one of the few
governments in the world whose members are prepared to profit out of the
drugs trade rather than to seek to suppress the drugs trade." - Robin
Cook, September 1, 1997
The government will now "Discourage economic activity" although they
"cannot control or order companies not to invest and not to trade with
Burma". --FCO Minister Derek Fatchett, Newsnight July 3, 1997.
A legal analysis of unilateral sanctions
The following is an abbreviated version of the paper produced by Steve
Peers of Essex University. The Burma Action Group UK takes full
responsibility for any alterations made to the original text during the
course of editing.
It is legally possible for a Member State to impose a ban on foreign
investment in Burma. Furthermore, there are limited legal difficulties in
the way of the European Union as a whole imposing such a ban.
As regards foreign policy sanctions other than economic and financial
sanctions, there is nothing to prevent Member States or the European Union
going further than the sanctions already adopted against Burma.
Financial sanctions (particularly a ban on direct investment) by individual
Member States or, ideally, the European Union against Burma would likely be
Financial sanctions, other than payments related to goods or services, are
not part of the Community's common commercial policy, and are not governed
by the GATT, the GATS or any other WTO agreement. Therefore such sanctions
against Burma cannot be incompatible with the Community's or the Member
States' obligations under any international agreement.
Financial sanctions on a country potentially run the spectrum from a very
limited ban on certain types of new investment, to a complete ban on all
new investment, to a ban on new investment coupled with obligations imposed
upon firms to divest existing holdings. Sanctions might also or
additionally take the form of a freeze on the assets held by companies or
firms of a third state within the financial system of the state imposing
Member States expressly have the right to take unilateral financial
sanctions against third states under Article 73g(2) EC. They need only
inform the other Member States and the Commission, at the latest when the
measures enter into force. The Council may however overturn the Member
State's decision by qualified majority vote on a proposal from the
Commission, with no mandatory involvement of the European Parliament.
Significantly, the unilateral sanctions can be imposed for 'serious
political reasons and on grounds of urgency'. These are much less
restrictive conditions than occur in Article 224 EC. As noted above,
financial sanctions can run the gamut from very limited restrictions on
direct investment to a complete ban on new direct investment with
divestment orders and asset freezes.
The 'serious political reasons' criterion seems easy to meet in the case of
Burma. There is an argument that it is up to the discretion of the Member
State imposing the financial sanctions to determine the 'grounds of
urgency'. There is no case law on this point and so it is legally
uncertain. It is also arguable that Member States can only use the option
where the Security Council has imposed financial sanctions, but there is no
wording pointing to this conclusion. Indeed a comparison with the wording
of Article 224 suggests that the drafters of the Treaty on European Union
wanted to leave a fairly broad discretion to Member States to impose
financial sanctions if they felt it necessary. The legal conclusion is
that Article 73g(2) EC allows a Member State to adopt financial sanctions
against Burma, notably a ban or restrictions upon direct investment, but
with a possibility that the Member State's decision might be overturned or
The need for a Security Council Resolution
In 1986, the Member States decided to restrict new direct investment in
South Africa without a UN Security Council Resolution requiring such
action. This measure was largely taken on the grounds that the South
African government was severely threatening the human rights of the
majority of its citizens. The restrictions are evidence of past practice
of the Member States indicating their view that restrictions on direct
investment in a third state on such grounds could be legal even without a
Security Council Resolution.
For further information please contact the Burma Action Group UK on 0171
359 7679 or 0961 357 391