Archive for the ‘Burma Sanctions’ Category


Jul

13

Burma Sanctions Shaved


Posted by at 1:41 am on July 13, 2012
Category: Burma SanctionsOFAC

BurmaBack in May this blog reported on Secretary of State Clinton’s announcement that the U.S. would issue general licenses permitting export of financial services to, and investment in, Burma. Yesterday those general licenses were issued by the Department of Treasury’s Office of Foreign Assets Control (“OFAC”).

As I had reported, Secretary Clinton’s announcement of the upcoming general licenses suggested that there would be some qualifications based on potential humans rights concerns relating to certain companies or sectors of the Burmese economy, although she didn’t suggest what those might be. Now we know: the General Licenses do not cover certain dealings with the Burmese Ministry of Defense, state or non-state armed services or groups owned by these services or the MOD. No new investments may involve these groups but financial services may be exported to those groups as long they are not “in connection with the provision of security services.” Security services are not defined, and OFAC staff is unlikely to provide any guidance into what this term means if you call them up, so, for all practical purposes, no financial services may be exported to these groups. This means, in its broadest sense, no money may be transferred to these groups by a U.S. person for any reason.

The general licenses also do not permit export of financial services, or investments in, an blocked person, i.e., any person on OFAC’s List of Specially Designated Entities and Blocked Persons. The general license does, however, permit, notwithstanding the prohibition on dealing with blocked persons, exports of financial services to Burma which involve

transfers to or from an account of a financial institution whose property and interests in property are blocked pursuant to those authorities, provided that the account is not on the books of a financial institution that is a U.S. person.

The part of this provision permitting transfers from accounts of blocked Burmese financial institutions seems to be contradicted by the very next provision of the General License

This general license does not authorize any debit to a blocked account.

Because a transfer from a blocked account and a debit to a blocked account are the same thing and because an account of a blocked financial institution would normally be considered a blocked account, the provision prohibiting all debits to blocked accounts would seem to prohibit the transfers from a non-U.S. account of a blocked financial institution permitted by the former provision. Perhaps the point here is that the non-U.S. account of a blocked entity is not a blocked account, but then there is no need for the language permitting the debit “provided that the account is not on the books of a financial institution that is a U.S. person.” In any event, exporters can avoid this ambiguity by assuring that payments for exported goods do not originate from blocked financial institutions in Burma. A number of private banks in Burma are not on the SDN list, although several are, such as Myawaddy Bank and the Innwa Bank which was just designated simultaneously with the release of the new general licenses for Burma.

Two other important points bear stating regarding these new general licenses. First, investments in Burma in excess of $500,000 and any investments with Myanma Oil and Gas Enterprise will be subject to required annual reports to the Department of State. The reporting requirements, which appear extensive and burdensome, are detailed on this State Department web page. Interestingly, the report will require a copy of, or a “concise summary” of, the reporting company’s anti-corruption policy regarding its operations in Burma.

Second and finally, nothing in these general licenses permits the import of goods from Burma, which remain generally prohibited with certain exceptions, including exceptions for household goods, personal effects and informational materials.

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Copyright © 2012 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)

May

31

Did Zuckerberg Friend Burma?


Posted by at 8:38 pm on May 31, 2012
Category: Burma SanctionsOFAC

Mark Zuckerberg
ABOVE: Mark Zuckerberg
© World Economic Forum*


An alert reader sent me a story suggesting that the Burmese ruby wedding ring that Facebook mogul Mark Zuckerberg gave his wife might have been imported illegally into the United States. The article is largely speculative, given that there is no direct evidence that the ring was illegally imported, but it does provide the opportunity to discuss the Burmese import sanctions, which likely will remain even after the recently announced lifting of the ban on financial investments in, and export of financial services to, Burma.

By Executive Order 13310, dated July 28, 2003, imports of all items, including rubies, of Burmese origin into the United States were prohibited. Shortly thereafter, in November 2003, the Office of Foreign Assets Control (“OFAC”) issued an interpretive guidance that items of Burmese origin could be imported into the United States if they were substantially transformed outside Burma such that under U.S. Customs rules they were no longer considered to be of Burmese origin. In December 2004, Customs issued a ruling that rubies mined in Burma but processed into finished gemstones in other countries were not of Burmese origin and could be imported into the United States. This opened the door to the return of Burmese rubies to the U.S. market.

Congress responded with the Tom Lantos Block Burmese Jade (Junta’s Anti-Democratic Efforts) Act Of 2008, PL 110-286 (50 U.S.C. § 1701 note). The Lantos Act, effective September 27, 2008, prohibited the import of rubies mined in Burma even if they have been processed outside Burma.

So, assuming that the ruby was finished outside Burma, the Zuckerberg ruby would need to have been imported into the United States prior to the aforementioned date in 2008. If not (and we have no way of knowing), Zuckerberg might wind up getting unfriended by OFAC.

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Copyright © 2012 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)

May

18

Do You Know the Way to Mandalay?


Posted by at 3:18 pm on May 18, 2012
Category: Burma Sanctions

BurmaYesterday, in remarks made by Secretary of State Clinton With Foreign Minister of Burma U Wunna Maung Lwin after the two met, Secretary Clinton announced that the United States was suspending its sanctions against Burma.

Sort of.

Here’s what she said, which is the only official announcement so far of the new policy

Today, I am also announcing new steps to permit American investment in the country and export of U.S. financial services. These are the most significant adjustments to our previous policy that have been taken to date. The United States will issue a general license that will enable American businesses to invest across the economy, allow citizens access to international credit markets and dollar-based transactions.

Late in her remarks the Secretary indicated that the United States would maintain the arms embargo against Burma, which would prohibit sales of any item on the United States Munitions List to Burma.

But then came this curious exchange which suggested that the “general license” might not be so “general.”

QUESTION: Secretary Clinton, regarding the easing of economic restrictions, will the – will U.S. companies be able to invest and trade with Myanmar state-owned companies, including in the oil and gas sector? And also, you talk about the corporate responsibilities of U.S. companies. Will these expectations be binding under U.S. law?

…

SECRETARY CLINTON: Well, thank you. First, let me say our presumption is that our companies will be able to deal in every sector of the economy with any business. That is a rebuttable presumption in the event that there is a company whose reputation, whose practices, are not in keeping with our stated policies of corporate responsibility or other matters that rise to our attention. But the presumption is that our oil and gas companies, our mining companies, our financial services companies are all now free to look for investments that can be mutually beneficial to Burma and to them.

Huh? Presumption? What part of “general license” do we not understand here? Perhaps Secretary Clinton means that if the U.S. doesn’t like a particular investment made pursuant to the general license it can revoke this “presumption” and revoke the general license as to that transaction. That, of course, would mean that making a new investment in Burma would be more risky than most companies could tolerate. We will have to wait and see exactly what the general license says when it is issued.

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Copyright © 2012 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)

Nov

16

Released Activist May Ask World To Shave Burma Sanctions


Posted by at 2:03 pm on November 16, 2010
Category: Burma Sanctions

Shwedagon TempleAccording to this article (subscription required) in today’s Wall Street Journal, recently released Burmese human rights activist and Nobel Peace Prize winner Aung San Suu Kyi may reconsider her position that the international community should continue to impose sanctions on Burma and its current military regime.

Current sanctions imposed by the United States, in addition to an arms embargo, include blocking the assets of the junta and its political allies, a ban on imports from Burma, a prohibition on new investment in Burma, and rules prohibiting the provision of financial services to Burma, including wire transfers to Burma. Some have argued that some of these sanctions, particularly the import and investment bans, have had little impact on the military junta running the country and that the major impact of these sanctions is on ordinary citizens of Burma. Others have argued that if the sanctions were lifted most of the revenue would go into the junta’s pockets and little would trickle down to ordinary Burmese citizens.

Suu Kyi’s statement in interviews after her release did not come down clearly on one side of this debate or the other

In her first interviews and meetings with diplomats since her release on Saturday, Ms. Suu Kyi said she was willing to consider some revision of sanctions, though she stopped short of committing herself to either side. “If people really want sanctions to be lifted, I will consider this,” she told reporters on Sunday. “This is the time Burma needs help.”

Progressively stricter sanctions imposed on Burma by the United States and Western Governments have been in response to the treatment of Suu Kyi by the junta. Until this weekend she had been under house arrest continuously for the past seven years (and had been under house arrest for 15 out of the past 21 years.) If Suu Kyi revises her support for sanctions, this could well prompt the United States to modify its sanctions on Burma, although the arms embargo under section 126.1 of the International Traffic in Arms Regulations and the blocking of the assets of the Burmese junta and its supporters would almost certainly remain in place.

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Copyright © 2010 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)

May

5

Will Burma Sanctions Get Shaved?


Posted by at 7:50 pm on May 5, 2009
Category: Burma Sanctions

Shwedagon TempleWith all the talk of relaxing Cuba sanctions and possible talks with Iran, it’s not surprising that Burma is showing up at the “me too” table asking for service. Today at Bloomberg, Frank Smithius, Burma country director for Médecins Sans Frontières, is quoted saying this:

Because of sanctions there is a lot of suffering, and we see that particularly in the humanitarian-aid field. There’s definitely hope in the aid community that the policy will be reconsidered. The Myanmar people are victims of a humanitarian boycott. There is enormous pressure on politicians in the West to look politically correct, and they get human rights brownie points by being very strict on aid.

In the same article, Bloomberg provides a chart showing that Burma ranked dead last in foreign aid per capita in 2007, receiving $4.07 per capita, which compares to the $52.32 per capita aid received by Sudan. Indeed, in February, Secretary Clinton stated that the Obama administration’s policy toward Burma’s military junta was undergoing a “major review.”

The EU at the end of April renewed its sanctions against Burma for another year. The EU foreign ministers voting to extend the sanctions indicated that they were nonetheless willing to hold consultations with the junta during the Asia-Europe Meeting (ASEM) in Hanoi, Vietnam, in May.

The current EU sanctions involve visa restrictions, asset blocking and an arms embargo. U.S. sanctions are broader and include, in addition to asset blocking and an arms embargo, a ban on imports, a ban on new investment, and a ban on exports of “financial services” which are broadly defined to include funds transfers, insurance services and investment and brokerage services. The U.S. regulations provide for a general license permitting exports of financial services in support of NGO activity in Burma.

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Copyright © 2009 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)