What the BURMA Act Does and Doesn’t Mean for U.S. Policy in Myanmar
On December 23, 2022, President Biden signed into law the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (NDAA 2023; P.L. 117–263). Included in the NDAA 2023 was a modified version of the Burma Unified through Rigorous Military Accountability Act (BURMA Act; H.R. 5497) that was passed by the House of Representatives on April 6, 2022. A similar companion bill, S. 2937, had been introduced in the Senate and referred to the Senate Committee on Foreign Relations, but received no further action.
The inclusion of the BURMA Act in the NDAA 2023 was praised by many interested parties in Myanmar and around the world, based on the assumption that it would result in increased U.S. pressure on Myanmar’s military junta, the State Administrative Council (SAC), and provide more aid to the people of Myanmar. A closer examination of the provisions of the BURMA Act, however, reveals that it is unlikely to result in major changes in U.S. policy in Myanmar.
Provisions of the Modified BURMA Act
The version of the BURMA Act that was incorporated into the NDAA 2023 is significantly different from either the version passed by the House of Representatives or the one introduced in the Senate. Virtually all of their respective provisions were modified or altered to reduce the overall scope and impact of the act. According to one source, these changes were made in response to objections from the Biden administration or in order to obtain the support necessary to pass in the Senate.
The NDAA’s BURMA Act contains seven separate elements pertaining to U.S. policy in Myanmar. These sections include a general statement on U.S. policy (section 5569); the authorization of the imposition of new sanctions (section 5570 and 5571); requirements for the coordination of U.S. policy (section 5572); a call for greater efforts at the United Nations (section 5573); the authorization of appropriations for assistance for Burma (section 5575, 5576 and 5577); authorization of assistance for “efforts against human rights abuses” in Myanmar (section 5578); and a limitation on the imposition of sanctions on imports from Myanmar (section 5579).
The statement of U.S. policy is a general statement of “support the people of Burma in their struggle for democracy, freedom, human rights, and justice.” This section calls for support of those opposing the military junta, explicitly mentioning the National Unity Government (NUG), but not the ethnic armed organizations (EAOs) or the People’s Defense Forces (PDFs). In addition, the act says it is U.S. policy to support a “credible process” for the restoration of civilian rule, reform of the Burmese military, and the protection of the rights of minority groups. It also requires accountability for perpetrators of human rights violations in Myanmar, as well as accountability for China and Russia for their alleged “support of the Burmese military.” Another component of U.S. policy, according to the BURMA Act, is the continued provision of humanitarian assistance for victims of violence still within Myanmar, as well as those in the “surrounding region.” Finally, the act calls for the unconditional release of all political prisoners in Myanmar.
The sanctions provisions of the BURMA Act stipulate obligatory sanctions on “senior officials of the Burmese military or security forces of Burma,” the SAC and its military-appointed cabinet, entities “that primarily operate in the defense sector of the Burmese economy,” and certain state-owned commercial enterprises. These obligatory sanctions are to be imposed no later than 180 days after enactment, or by June 21, 2023.
In addition, it authorizes, but does not require, the president to impose sanctions on the Myanma Oil and Gas Enterprise, state-owned enterprises that are not operating in the extractive or industrial sector and financially benefit the Burmese military, spouses, and adult children of persons sanctioned under the BURMA Act, foreign persons who have aided or assisted with the coup and supporting the SAC, and “any Burmese entity that provides materiel in the Burmese military.” The stipulated sanctions are the freezing of assets held in the United States or are held by a U.S. entity, the denial of foreign exchange transactions, and a ban on visas to enter the United States.
In terms of policy coordination, the BURMA Act requires the Department of State’s Office of Sanctions Coordination to “develop a comprehensive strategy for the implementation of the full range of United States diplomatic capabilities to implement Burma-related sanctions . . .” The strategy is to not only cover multiagency coordination within the U.S. government, but also international efforts to impose multilateral sanctions, including pressuring China and Russia to “support multilateral action against the Burmese military.”
Regarding the United Nations, the BURMA Act requires the president to “direct the United States Permanent Representative to the United Nations to use the voice, vote, and influence of the United States to spur greater action by the United Nations” regarding Burma. This includes “pushing the United Nations Security Council” to consider a condemnation of the 2021 military coup, the imposition of a “global arms embargo,” a termination of assistance to SAC, and passage of “multilateral sanctions against the Burmese military.”
The BURMA Act also authorizes the appropriation of funds for FY 2023 to 2027 for various forms of assistance, including “programs to strengthen federalism in and among ethnic states in Burma, including for non-lethal assistance for Ethnic Armed Organizations in Burma.” Assistance may also be provided for “efforts to establish an inclusive and representative democracy in Burma;” “technical and non-lethal support” for the EAOs, PDFs, and “pro-democracy movement organizations;” and programs to “investigate and document atrocities in Burma.” The act also stipulates that none of this assistance is to be made available to the SAC, the Burmese military, or any entity controlled by either the SAC or the Burmese military.
The act authorizes the secretary of state to also provide assistance to “appropriate civilian or international entities” to identify suspected “war crimes, crimes against humanity, and genocide in Burma;” “collect, document and protect evidence” of those suspected crimes; and conduct investigations of the alleged crimes. The act explicitly includes the United Nations’ Independent Investigation Mechanism for Myanmar (IIMM).
The final section of the BURMA Act excludes the imposition of sanctions on the importation of goods under the authority of the act. For purposes of the BURMA Act, “goods” are defined as “any article, natural or man-made substance, material, supply or manufactured product, including inspection and test equipment and excluding technical data.”
Implications for U.S. Policy
The provisions of the BURMA Act in the NDAA 2023 underwent substantial changes from the bills introduced in the House of Representatives and the Senate, reducing their overall impact on U.S. policy. The sanctions provisions, for example, are comparatively limited in scope than those in the original bills. In addition, both the obligatory and discretionary sanctions authorized in the BURMA Act could be imposed using existing authority provided by previous acts, such as the Tom Lantos Block Burmese JADE (Junta's Anti-Democratic Efforts) Act of 2008 (JADE Act; P.L. 110–286). Enforcement of the sanctions provisions of the JADE Act were waived by Executive Order 13742 and Executive Order 14014, but could be reinstated by President Biden at any time.
Another major change was the elimination of the position of special coordinator for Burmese Democracy from the BURMA Act. In both the House and Senate versions, the secretary of state was authorized to “designate an official of the Department of State” to coordinate the multiagency implementation of U.S. policy in Burma. This position was similar to one established in the JADE Act, which was eventually eliminated in response to years of complaints by the State Department. The special coordinator position could have led to the creation of a more effective and realistic policy in Myanmar, after years of drift dating back to the late Obama administration.
The assistance provisions of the BURMA Act were also significantly reduced in scope and specificity. In the bills introduced in each chamber, the assistance provisions listed many forms of assistance to be provided, including aid for refugees in “Bangladesh, Thailand, and the surrounding region;” internally displaced persons; voluntary resettlement; “promotion of ethnic and religious tolerance;” “primary, secondary, and tertiary education for displaced children,” and “political prisoners.”
One potentially important detail is the assistance provisions of the BURMA Act is the authorization of “non-lethal assistance” to Myanmar’s EAOs, PDFs and “pro-democracy movement organizations.” This detail is significant in two ways. First, it explicitly designates the EAOs and PDFs as possible recipients of “non-lethal assistance.” The Biden administration has, in general, refrained from direct mention of relations with the EAOs and PDFs, choosing to focus more on its engagement with the NUG.
Second, the authorization of “non-lethal assistance” provides the Biden administration with the opportunity to adopt a more liberal interpretation of what forms of military aid it can provide to the EAOs and PDFs. In Syria and Ukraine, for example, “non-lethal assistance” allowed the provision of uniforms, protective armor, armored military vehicles, radar equipment and medical equipment and supplies. It remains to be seen as how broadly the Biden administration will interpret this provision of the BURMA Act.
Overall, the BURMA Act requires little change in U.S. policy in Myanmar. However, it does give the Biden administration the discretionary authority to make major changes, if it wishes to do so. In addition, the BURMA Act should also be viewed as an indication that Congress thinks that the Biden administration should take a more active role in supporting the pro-democracy forces in Myanmar in their efforts to overthrow the SAC and establish a democratic government in the country.
Michael F. Martin is an adjunct fellow (non-resident) with the Southeast Asia Program at the Center for Strategic and International Studies in Washington, D.C.