On December 6, 2016, the State Department’s Office of International Religious Freedom published a notice in the Federal Register announcing that it would maintain the unilateral U.S. arms embargo on Myanmar (which the U.S. Government still calls “Burma”) pursuant to the International Religious Freedom Act of 1998 (Pub. L. 105–292), as amended. Along with Myanmar, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, Tajikistan, Turkmenistan, and Uzbekistan were all designated as “countries of particular concern” under that law for having “engaged in or tolerated particularly severe violations of religious freedom,” although different sanctions were imposed on the different countries, and for some the sanctions were waived altogether. For Myanmar, the State Department determined that this designation warrants the continuation of the country’s inclusion in Section 126.1 of the International Traffic in Arms Regulations (ITAR), which imposes a unilateral U.S. arms embargo. While the State Department has imposed this Section 126.1 measure on Myanmar in the past, this is the first time this has come up since the President lifted all U.S. economic and financial sanctions on Myanmar on October 7, 2016, as we discussed in a previous post. As detailed in that earlier post, this is just one example of the risks that remain in doing business in Myanmar.

This finding that Myanmar remains a country of particular concern with respect to religious freedom could be viewed as contrasting with – or supplementing, depending on one’s perspective – the President’s December 2, 2016 determination that the country had made enough progress in improving its human rights practices and moving towards democratic governance that the U.S. should waive statutory restrictions on government-to-government assistance. See our recent post on that determination. For those left scratching their heads after reading that the Obama Administration is, on one hand, waiving statutory restrictions on assistance to Myanmar because they’ve made progress on human rights, but, on the other hand, is continuing to impose other sanctions because they continue to violate basic religious freedoms, the answer could be that the US government has determined that the most egregious of the human rights abuses in Myanmar stem from persecution of religious minorities, while the human rights situation in the country has otherwise measurably improved since the sanctions were first imposed. Or it could be, at least in part, an outcome determinative decision – i.e., the Administration may be deciding which sanctions it would like to end and which ones it would like to leave in place, and are making statutory certifications to achieve those ends. The continuation of the arms embargo on Myanmar is consistent with U.S. policy to promote the position of the democratically-elected civilian side of Myanmar’s government while seeking to control the influence of the military. How the incoming Trump Administration will administer US sanctions against Myanmar remains to be seen, but there have not been any concrete signals so far that they will take a tougher approach towards the military based on human rights or religious freedom concerns.