Termination of Emergency With Respect to the Actions and Policies of the Government of Burma

Overview

Termination of National Emergency

Executive Order 13742, issued by President Barack Obama on October 7, 2016, terminates the national emergency concerning Burma. This action, prompted by significant political changes in Burma, signals a pivotal shift in U.S. foreign policy. The order acknowledges the substantial democratic advancements in Burma, including the historic 2015 elections that led to the establishment of a civilian-led government under the National League for Democracy. Recognizing the release of political prisoners and improvements in human rights, the order reflects an optimistic assessment of political reform in Burma. With the termination of this emergency, U.S. policy transitions from one focused on sanctions to a potentially more cooperative diplomatic relationship.

Revocation of Sanctions

The executive order revokes a series of prior orders that imposed sanctions on Burma. These include Executive Orders 13047, 13310, 13448, 13464, 13619, and 13651. Together, these orders established a comprehensive sanctions regime targeting various aspects of Burma's economic and political framework. The prohibitions affected new investments and financial transactions with the Burmese government while blocking property associated with its military leadership. By annulling these orders, Executive Order 13742 effectively dismantles the sanctions framework, opening a path for broader economic and diplomatic engagements with Burma.

Legal Framework and Waivers

The order operates under the authority of several U.S. laws, including the International Emergency Economic Powers Act (IEEPA) and the National Emergencies Act. The President uses this authority to waive specific sanctions, articulating the national interest in doing so under the Tom Lantos Block Burmese JADE Act. This strategic move aligns with U.S. objectives to nurture and support democratic institutions and governance in Burma. Although lifting restrictions, the order clarifies that it does not create any enforceable legal rights, ensuring that its impact remains focused on foreign policy and economic considerations.

Legal and Policy Implications

Changes in Legal Status

Legally, Executive Order 13742 ends several statutory and regulatory instruments underpinning U.S. sanctions policy against Burma. The order references the International Emergency Economic Powers Act and the National Emergencies Act as the foundational laws granting presidential authority. By terminating the national emergency and revoking sanctions, it nullifies various trade and transaction prohibitions that have existed for nearly two decades, reshaping the legal landscape for U.S.-Burma relations.

Waivers and Certifications

The order invokes section 5(i) of the JADE Act to certify national interest justifications for waiving specific sanctions. This certification satisfies statutory requirements and illustrates a deliberate pivot in U.S. policy toward encouraging Burma's democratic development. The waiver highlights a recalibration of U.S. priorities, emphasizing support for democratic reforms over punitive measures. Nonetheless, it opens a legal path for enhanced U.S. economic engagement, contingent on ongoing assessments of Burma's internal progress.

Impact on Immigration Law

The revocation of orders affecting immigration, including lifting travel bans under previous executive orders, reconfigures the legal standing of Burmese individuals concerning entry into the United States. This aspect of the order necessitates careful monitoring to ensure compliance with U.S. immigration protocols. The repeal of entry bans constitutes a symbolic and practical extension of U.S. efforts to foster international norms of human rights and democratic participation.

Shift in Diplomatic Stance

From a policy perspective, Executive Order 13742 embodies a shift from isolation and economic sanctions to engagement and partnership. The U.S. decision to integrate Burma into international economic systems, based on recent political reforms, reflects a strategic reassessment with significant implications for bilateral relations. This strategy underscores flexibility in U.S. foreign relations, where negotiable conditions—such as adherence to democratic norms—can lead to substantial policy adjustments.

Long-Term Considerations

Policymakers must consider the long-term implications of lifting these sanctions, particularly concerning U.S. strategic interests in Southeast Asia. By fostering stronger bilateral ties, the U.S. aims to stabilize the region and counter geopolitical influences, such as those from China. However, the U.S.'s engagement strategy hinges on Burma's continued progress in democratization and human rights improvements, necessitating ongoing scrutiny by legal, diplomatic, and policy experts.

Who Benefits

Burmese Government and Political Entities

This executive order primarily benefits the government of Burma, especially the newly established civilian-led administration. Installed following the 2015 elections, the government now has a greater capacity to engage with international partners, bolstering its legitimacy and securing economic aid and investments that sanctions previously restricted.

U.S. Corporations and Investors

American businesses stand to gain significantly from the revocation of sanctions. Companies in industries such as energy, mining, and telecommunications find new opportunities for investment and partnerships in a market that had been largely off-limits. The removal of barriers encourages U.S. economic interests to explore and expand into Burmese markets, unleashing potential capital to engage in development projects.

International Aid Organizations

Non-governmental organizations and international development agencies also benefit, as the termination of the sanctions framework enhances avenues for foreign aid and technical assistance programs. These entities can now collaborate more effectively with the Burmese government and local agencies to implement initiatives in education, healthcare, and infrastructure, fostering social improvements.

Burmese Citizens

For the people of Burma, benefits include increased economic activity and improved access to international goods and services. The easing of sanctions may enhance job creation and economic stability, contributing to improved living standards. Moreover, increased foreign investments promise infrastructural and technological advancements that can enhance both daily life and future prospects.

Human Rights Advocates

Human rights organizations perceive the engagement policy as a positive development, contingent on continued empirical improvements in political freedom and civil liberties. These groups can expand their operations and influence, ensuring democratic principles are upheld while providing critical oversight to prevent regression on rights issues in Burma.

Who Suffers

Military and Old Guard

The Burmese military and entrenched interests of the former regime may view the lifting of sanctions as a threat to their influence. The new civilian government and advancing reforms challenge their traditional powers. Increased international scrutiny and expectations for governance accountability may further marginalize their position.

U.S. Human Rights Hardliners

Critics in the U.S., particularly those favoring a hardline stance on human rights, argue that lifting sanctions diminishes leverage over Burma's military. They fear it could undermine efforts to address human rights abuses, viewing the revocation of sanctions as premature and potentially eroding pressures central to U.S. policy.

Competing Regional Powers

Geopolitically, nations that previously influenced Burma may react negatively to deeper U.S. engagement. Regional rivals perceive this policy shift as U.S. strategic encroachment, potentially recalibrating their own foreign strategies toward Burma. Changes in Burmese alliances and trade relationships could lead to economic and diplomatic realignments with broader implications.

Domestic Stakeholders Concerned with Rapid Changes

Not all sectors in Burma may welcome the rapid changes accompanying increased foreign involvement. Local businesses and communities benefiting from protectionist policies may struggle to adapt, facing competitive pressures from multinational corporations with more extensive resources.

Potential Political Opposition in Burma

Burma's political landscape could become more fractious, with opposition parties challenging international integration's speed and scope. Concerns about sovereignty and cultural influences may fuel political debates, complicating the evolving dynamics within the nation’s democratic framework.

Historical Context

Evolution of U.S. Policy Toward Burma

U.S. policy toward Burma has shifted considerably over successive administrations. Initially characterized by strong economic sanctions and diplomatic isolation, the U.S. response reflected a concerted international effort to counter decades of military dominance and human rights abuses in Burma. These sanctions from the 1990s and early 2000s aligned with global pressure for reform.

Transition Under Obama Administration

During the Obama administration, a strategic pivot toward recognizing and engaging with emerging democracies became evident. This shift was part of a broader "pivot to Asia" policy, seeking to strengthen U.S. ties in the Asia-Pacific as a counterbalance to China's influence. The 2015 elections in Burma and subsequent reforms provided impetus for adjusting U.S. policy to support democratic progress.

Global Context of Democratic Reforms

Globally, the early 2010s saw a wave of democratic aspirations—often dubbed the "third wave of democratization"—resonating in regions worldwide. Burma's political changes aligned with this, as citizens demanded greater freedoms and governance reforms. Recognizing an opportunity, the U.S. administration championed these developments through strategic engagement.

Burma's Geopolitical Significance

Burmese geopolitical significance, situated between South and Southeast Asia, presents a strategic vantage for regional stability and trade. The U.S. policy adaptation, delineated by Executive Order 13742, acknowledges Burma's evolving role and the importance of nurturing a stable, democratic institution in a region of opportunity and volatility.

Legacy and Influence of the Executive Order

The issuance of Executive Order 13742 aligns with the Obama administration's focus on soft power and diplomacy. It sets a precedent for U.S. approaches to nations emerging from authoritarianism, using engagement policies as change catalysts. The legacy's impact hinges on future administrations' reactions and internal developments in Burma.

Potential Controversies or Challenges

Concerns over Premature Lifting of Sanctions

The decision to lift sanctions on Burma comes with controversies. Critics argue that economic restrictions' removal was premature, potentially undermining democratization. Skeptical observers question whether governance and human rights improvements justify such a shift, citing ongoing ethnic tensions in Burma.

Congressional Oversight and Reactions

Congress’s response to Executive Order 13742 could spark debate, particularly among legislators skeptical of the administration’s assessment of Burma’s reforms. Legislators may press for rigorous monitoring and accountability, fearing diminished U.S. influence without clear progress benchmarks. Responses vary, with some advocating conditional reengagement based on explicit improvements.

Legal Challenges to the Order

Legal challenges may arise regarding the broad discretionary power under IEEPA and NEA. Critics question the criteria used to justify the national emergency's termination, debating whether oversight reduction might enable backsliding in Burma. These critiques focus on interpreting executive power limits in foreign policy adjudications.

Implementation and Enforcement Concerns

Effective implementation of new policies requires inter-agency coordination and comprehensive frameworks. Challenges persist in U.S. agencies’ ability to monitor Burma's political developments actively and respond to deviations from democratic norms. Re-imposition of certain sanctions may be necessary, as the U.S. navigates more open bilateral relations.

International Reactions and Strategic Calculations

Executive Order 13742 provokes global reactions that could complicate U.S. strategic calculations. Observing the U.S. policy reversal, allies may adopt varied stances on engaging with Burma. These dynamics necessitate calibrated diplomatic strategies to ensure consistency in promoting democratic outcomes in Southeast Asia's geopolitical landscape.