CFOB's Position On Economic Sanctions

CFOB supports Burma's MPs elected in the 1990 elections, represented by Burma's government in-exile the NCGUB and the NLD headed by Daw Aung San Suu Kyi, in their call for targeted economic sanctions against the military regime in Burma.

The topic of economic sanctions of course is a very sensitive issue, as it evokes many negative images, such as the devestating sanctions which were directly responsible for the deaths of thousands of innoncent civilians in Iraq following the 1991 Guld War. CFOB categorically condemns these actions and the policies of the US government which were responsible for this catastrophe.

However, it is of the opinion of CFOB that the issue of economic sanctions must be assessed on a case by case basis. Again, to draw from the Iraqi example, upon closer examination of the sanctions which led to this crisis, it becomes evident that the cause of deaths in Iraq was not from sanctions against foreign companies rather, it was due to U.S sanctions against essential humanitarian supplies, such as medicine and radiology equipment.

Under no circumstances whatsoever is CFOB calling for sanctions against humanitarian essentials in Burma. This is why we refer to the sanctions called for by the elected leadership from Burma as targeted sanctions. Targeted sanctions entails sanctions that are directly linked to the military junta, not the civilian polulation of Burma. For example, sanctions against the mining and resouce sector. Companies such as, Canadian giant Ivanhoe Mines, are in direct partnership with the the military junta, a ventures whichs earns them substantial revenue to purchase weaponry used to supress the people of Burma. Furthermore, these companies which are directly owned by the military regime, employ very few local employees in Burma.

According to statistics complied in August 2005 by the US State Department, 70% of the labour force in Burma is employed in the agricultural secctor, opposed to 7% employed in indistry, while the remaining 23% are in the service sector. The types of sanctions advocated for by CFOB and its allies in the international movement for democracy in Burma, specifically focus on the industrial sector.

Inevitably some workers may lose jobs from such sanctions but due to the nature of targeted sanctions and the composition of the Burmese economey, Burma leaders have calculated that the impact on the vast majority of the civilian population would be minimal. As previously mentioned Burma's elected MPs support targeted economic sanctions, as do Burmese trade unions and federations, as well as notable figures such as, Arch Bishop Desmond Tutu, Vaclav Havel, the Dalai Lama and John Ralston Saul. Most opponents to sanctions are corporations and governments!

The NCGUB and the NLD are only calling for sanctions against the Burmese junta as a means of facilitating political dialogue towards a transition to democracy. A similar tactic was used in South Africa during the struggle against apartheid. South African leaders called on the governments of the world to stop doing business with the racist, human rights abusing government. This policy was ultimately sucessful.

CFOB feels that the situation in Burma is in dire need of urgent action. Civilans are being brutalized, Burma's democratic leader, Nobel laureate Daw Aung San Suu Kyi remains under house arrest and the generals show no sign of relinquishing power. No one is calling for a costly and bloody war. The use sanctions is a peaceful means to bring about democratic change. Unlike former U.S Secretary of State, Madeline Albright, who claimed that the deaths of over 500 000 Iraqi children was an acceptable price to remove Sadam Hussain, CFOB does not feel that the mass death of Burmese civilians is an acceptable price for change. Yet the price of inaction on the behalf of world governments, including the Government of Canada who refuse to impose sanctions against a brutal dictatorship, since it is counter to their economic interests, could be equally as devestating.

The Special Economic Measures Act (SEMA)

The Special Economic Measure Act (SEMA) is a peice of legislation which gives the cabinet of the Government of Canada, discretionary powers to impose economic sanctions in the absence of a resolution from the UN Security Council.

CFOB endorses the application of SEMA by the Government of Canada against the Burmese junta to assist a transition to democracy. CFOB commissioned a legal brief on the application of SEMA to Burma and it was found that contrary to the Government of Canada's position, the conditions in Burma do infact legally warrant the evocation of SEMA.

A second brief was also commissioned to respond the the Department of Foreign Affairs' rejection of the argument in favour of SEMA. The second brief clearly illustrates that the issue is the lack of political on behalf of the government rather than an issue of the law.

In May 1998, CFOB commissioned a research memorandum on the Special Economic Measures Act, particularly s.4 of said Act, in an effort to determine whether the Federal Government may introduce additional sanctions on Burma. In order to impose measures available under the Act, in the absence of a resolution from an international body empowering such an action, Cabinet must be of the view that a grave breach of international peace and security has occurred that has resulted, or is likely to result in a serious international crisis. Determining whether there is such a breach leading to such a crisis is a discretionary decision taken by Cabinet, one that is very difficult to challenge in the courts.

As long as Cabinet comes to its conclusion that the circumstances in Burma constitute a grave breach of international peace and security likely to result in an international crisis- terms undefined in Canadian law- in good faith and with regard to the information available to it, Cabinets decision is probably insulated from judicial review.

The term “international peace and security” is not defined by the Act or anywhere else in Canadian law. While it is not obliged to do so, Cabinet, in coming to its decision, may wish to refer to the way this term and other, similar phrases have been employed by sources suggests a breach or threat to international peace and security need not involve an international conflict. In several instances, such a breach or threat has been determined to exist by virtue of an internal conflict, including a military coup.

e.g. / In May 1994, the Security Council adopted Resolution 918 determining that the internal conflict in Rwanda “constitute[d] a threat to peace and security in the region.” More recently, the Security Council has found threats to international peace and security in internal conflicts in Haiti, Bosnia and Herzegovina, Angola, Croatia, Sierra Leone and the Central African Republic.

Further, crimes against peace and security have, at various times, included international drug trafficking, a wrong remains amongst the crimes to be addressed by the proposed International Criminal Court.

The circumstances in Burma, both in terms of human rights abuses and government complicity in serious drug trafficking, it is submitted, even the international understanding of “a grave breach of international peace and security” and like terms. The key facts are these:

- The present Burmese regime is a notorious violator of human rights. The regime holds power illicitly. The regime and its members have been implicated in extrajudicial killings, torture, disappearances, forced labour and rape.

- Repression by the regime has contributed to the movement of over 100 000 people fleeing the country in neighbouring nations, which camps the regime continues to attack.

It is submitted that this synergy of human rights abuses with drug trafficking on a massive scale is sufficient to render a finding that the circumstances in Burma amount to a “grave breach of international peace and security likely to result in an international crisis” not only plausible, but reasonable.

Brief on DFAIT’s reaction to Canadian Friends of Burma Legal Research on Special Economic Measures Act

By: Craig Forcese

Summary

The position reportedly taken by the Department of Foreign Affairs and International Trade on the scope and applicability of the Special Economic Measures Act is questionable. First, its argument the term “breach of international peace and security” in the Act is to be accorded its international meaning is largely inconsistent with the legislative history of the Act. Instead, this legislation supports a view of the Act as a flexible instrument that does not pre-define the circumstances in which Cabinet may impose unilateral sanctions. Given this conclusion, were the Cabinet to feel bound to follow the international meaning of the term, it might improperly fetter its discretion. Such a fettering would be an error reviewable in court.

Second, even if one were to accept the Department’s view, there is strong reason to believe that circumstances in Burma amount to breach of international peace and security, within the international meaning of the term. The Department reportedly takes the view that “breach” requires a transnational, cross-border conflict. The repeated attacks by Burmese government and Burmese-government allied forces against refugee in Thailand and the repeated exchange of fire between these forces and the Thai military, render the Burmese situation a trans-border conflict.

Given these findings, deciding whether to act under s.4 of the Special Economic Measures Act is best viewed as a question of political will, and not of law.