Vol. 149, No. 13 — July 1, 2015

Registration

SOR/2015-165 June 19, 2015

UNITED NATIONS ACT

Regulations Implementing the United Nations Resolution on South Sudan

P.C. 2015-849 June 18, 2015

Whereas the Security Council of the United Nations, acting under Article 41 of the Charter of the United Nations, adopted Resolution 2206 (2015) on March 3, 2015;

And whereas it appears to the Governor in Council to be necessary to make regulations for enabling the measures set out in that resolution to be effectively applied;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to section 2 of the United Nations Act (see footnote a), makes the annexed Regulations Implementing the United Nations Resolution on South Sudan.

REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON SOUTH SUDAN

INTERPRETATION

Definitions

1. The following definitions apply in these Regulations.

“Canadian”
« Canadien »

“Canadian” means a citizen within the meaning of the Citizenship Act, a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act or a corporation incorporated or continued by or under the laws of Canada or of a province.

“Committee of the Security Council”
« Comité du Conseil de sécurité »

“Committee of the Security Council” means the Committee of the Security Council of the United Nations established under paragraph 16 of Security Council Resolution 2206.

“designated person”
« personne désignée »

“designated person” means a person that is designated by the Committee of the Security Council under paragraph 6 of Security Council Resolution 2206.

“entity”
« entité »

“entity” means a corporation, trust, partnership, fund, unincorporated association or organization or foreign state.

“Focal Point for De-listing”
« point focal pour les demandes de radiation »

“Focal Point for De-listing” means the Focal Point for De-listing established pursuant to Resolution 1730 (2006) of December 19, 2006 adopted by the Security Council of the United Nations.

“Minister”
« ministre »

“Minister” means the Minister of Foreign Affairs.

“official”
« fonctionnaire »

“official” means a person who

“Panel of Experts”
« Groupe d’experts »

“Panel of Experts” means the Panel of Experts that is established under Security Council Resolution 2206.

“person”
« personne »

“person” means an individual or entity.

“property”
« bien »

“property” means any real, personal, movable or immovable property.

“Security Council Resolution 2206”
« résolution 2206 du Conseil de sécurité »

“Security Council Resolution 2206” means Resolution 2206 (2015) of March 3, 2015, adopted by the Security Council of the United Nations.

“South Sudan”
« Soudan du Sud »

“South Sudan” means the Republic of South Sudan and includes

“working day”
« jour ouvrable »

“working day” means a day that is not Saturday or a holiday.

APPLICATION

Binding on Her Majesty

2. These Regulations are binding on Her Majesty in right of Canada or of a province.

PROHIBITIONS

Prohibited activities

3. It is prohibited for any person in Canada or any Canadian outside Canada to knowingly

Assisting a prohibited act or thing

4. It is prohibited for any person in Canada or any Canadian outside Canada to knowingly do anything that causes, facilitates or assists in, or is intended to cause, facilitate or assist in, any act or thing prohibited by section 3.

OBLIGATIONS

Duty to determine

5. The following entities must determine on a continuing basis whether they are in possession or control of property that is owned, held or controlled by or on behalf of a designated person:

Duty to disclose

6. (1) Every person in Canada and every Canadian outside Canada must disclose without delay to the Commissioner of the Royal Canadian Mounted Police or to the Director of the Canadian Security Intelligence Service

Immunity

(2) No proceedings under the United Nations Act and no civil proceedings lie against a person for a disclosure made in good faith under subsection (1).

APPLICATIONS

Exemption

7. (1) A person who wishes to do an act or thing that is prohibited under these Regulations may, before doing the act or thing, apply to the Minister in writing for a certificate to exempt the act or thing from the application of the Regulations.

Certificate

(2) The Minister may issue the certificate if the Security Council of the United Nations did not intend that such an act or thing be prohibited or if the act or thing has been approved in advance by either the Security Council of the United Nations or the Committee of the Security Council.

Basic or extraordinary expenses

8. (1) A person whose property has been affected by the application of section 3 may apply to the Minister in writing for a certificate to exempt the property from the application of that section if the property is necessary for basic or extraordinary expenses or it is subject to a lien, mortgage or security interest, to a hypotec or prior claim, to a charge or to a judicial, administrative or arbitral decision.

Certificate

(2) If it is established in accordance with Security Council Resolution 2206 that the property is necessary for basic or extraordinary expenses or that it is subject to a lien, mortgage or security interest, to a hypotec or prior claim, to a charge or to a judicial, administrative or arbitral decision, the Minister must issue a certificate within the following timelines:

Certificate — parties to contract

9. (1) If a party to a contract or a gratuitous transfer becomes a designated person, any party to that contract or transfer may apply to the Minister in writing for a certificate to exempt property from the application of section 3 to permit any party that is not a designated person to receive payments or a transfer or for the party that is a designated person to make payments or to complete the transfer.

Certificate — time period

(2) The Minister must issue a certificate within 90 days after the day on which the application is received and at least 10 working days after the day on which he or she has informed the Committee of the Security Council of his or her intent to issue the certificate, if it is established that

Mistaken identity

10. (1) A person in Canada, or any Canadian outside Canada, whose name is the same as or similar to the name of a designated person and that claims not to be that designated person may apply to the Minister in writing for a certificate stating that they are not that designated person.

Determination by Minister

(2) Within 45 days after the day on which the application is received, the Minister must,

INFORMATION SHARING

Disclosure by official

11. (1) An official may, for the purpose of responding to a request from the Security Council of the United Nations, the Committee of the Security Council, the Panel of Experts or the Focal Point for De-listing, disclose personal information to the Minister.

Disclosure by Minister

(2) The Minister may, for the purpose of administering or enforcing these Regulations or fulfilling an obligation under a resolution of the Security Council of the United Nations, disclose personal information to the Security Council of the United Nations, the Committee of the Security Council, the Panel of Experts or the Focal Point for De-listing.

LEGAL PROCEEDINGS

Prohibition — legal proceedings

12. No legal proceedings lie in Canada at the instance of the Government of South Sudan, of any person or entity in South Sudan, of a designated person or of any person claiming through or acting on behalf of or for the benefit of any such person or entity in connection with any contract or other dealing if its performance was prevented in any way by these Regulations.

APPLICATION BEFORE PUBLICATION

Application

13. For the purpose of paragraph 11(2)(a) of the Statutory Instruments Act, these Regulations apply before they are published in the Canada Gazette.

COMING INTO FORCE

Registration

14. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The situation in South Sudan continues to deteriorate, and both parties to the conflict continue to engage in activities that undermine the Cessation of Hostilities Agreement, mediated by the Intergovernmental Authority on Development (IGAD) on January 23, 2014.

Background

Since December 2013, forces loyal to President Salva Kiir and those loyal to former Vice-President Riek Machar have engaged in violent conflict, much of it along ethnic lines, and involving significant human rights abuses, including sexual and gender-based violence and recruitment of child soldiers. Targeting of civilians based on ethnicity has been deeply concerning. According to the Office for the Coordination of Humanitarian Affairs (OCHA), more than 1.5 million people have been internally displaced within South Sudan; over 480 000 people have sought refuge in neighbouring Ethiopia, Sudan, Kenya and Uganda, and 2.5 million people face serious food insecurity due to the conflict. Accountability for violence is almost non-existent. Concerns over potential for regionalization of the conflict have been raised.

The Intergovernmental Authority for Development (IGAD — a regional organization in the Horn of Africa) has been leading peace talks since the start of the conflict. A Cessation of Hostilities Agreement was signed by both parties on January 23, 2014, followed by an Agreement to Resolve the Crisis in South Sudan signed on May 9, 2014. Both agreements were violated shortly thereafter, and international observers suspect that both sides have been deliberately stalling negotiations in hopes of furthering their military gains.

On May 6, 2014, U.S. Secretary of State John Kerry announced sanctions against Peter Gadet, a former Sudan People’s Liberation Army (SPLA) commander who defected to join anti-government forces at the start of the conflict, and Major-General Marial Chanuong, head of Salva Kiir’s presidential guard. This decision freezes any of their assets in the United States, blocks U.S. individuals and entities from dealing with them, and suspends their entry into the United State. On July 10, 2014, the European Union (EU) imposed sanctions against two South Sudanese military leaders (Peter Gadet and Santino Deng Wol, a Major General and the commander of the South Sudanese Government’s 3rd infantry division). On September 9, 2014, the U.S. Department of the Treasury announced additional sanctions targeting James Koang Chuol (Koang), a former commander of the SPLA division in Bentiu, Unity State, who also defected to join anti-government forces in December 2013, and Santino Deng Wol. On October 31, 2014, following a finding by the Governor in Council that the situation in South Sudan constitutes a grave breach of international peace and security that has resulted or is likely to result in a serious international crisis, Canada announced targeted sanctions under the Special Economic Measures Act against Peter Gadet and Marial Chanuong for engaging in activities that directly or indirectly facilitate, support, provide funding for or contribute to a violation or attempted violation of the Cessation of Hostilities Agreement.

On February 1, 2015, both parties to the conflict agreed to return to talks on February 20, 2015, to resolve outstanding issues of power sharing and security arrangements for the establishment of a transition Government of national unity by March 5, 2015. As of early May 2015, the two parties to the conflict had failed to come to an agreement. Talks are expected to resume with an enhanced IGAD framework for negotiations, but renewed military activity has been reported in the north of the country since the failure to meet the March deadline.

On March 3, 2015, due to the continued deterioration of the crisis, the Security Council adopted Resolution 2206 (2015). This Resolution imposes sanctions measures, for a period of one year from the date of its adoption, against individuals or entities designated by the Security Council’s South Sudan Sanctions Committee that are responsible or complicit in, or have engaged in, directly or indirectly, actions or policies that threaten the peace, security or stability of South Sudan. The Resolution requires member states to take the necessary measures to prevent these individuals from entering or transiting through their territory. Member states are also required to freeze without delay all assets of individuals or entities designated by the Committee.

Resolution 2206 (2015) was adopted by the Security Council pursuant to Article 41 of Chapter VII of the Charter of the United Nations and is binding on all member states. As a member state of the United Nations and pursuant to Article 25 of the Charter of the United Nations, Canada is legally obligated to implement binding decisions of the Security Council. In Canada, travel restrictions on designated persons are imposed through the Immigration and Refugee Protection Act and its Regulations. The United Nations Act constitutes the appropriate legislative authority to implement the asset freeze in Canadian law.

Objectives

The proposed Regulations Implementing the United Nations Resolutions on South Sudan (the Regulations) will implement in Canadian domestic law the binding international obligations of Resolution 2206 (2015), adopted on March 3, 2015.

Description

The Regulations prohibit any person in Canada and any Canadian outside Canada, for a period of one year from the date of the adoption of the United Nations Security Council (UNSC) Resolution, to knowingly

The Regulations include a number of exceptions to the above-noted prohibitions, including allowing a person whose property is affected by the prohibitions to apply for a certificate from the Minister of Foreign Affairs to exempt the property from the prohibitions. Exemptions include if the property is necessary for basic or extraordinary expenses, or if the property is the subject of a judicial, administrative or arbitral lien or judgment, a hypothec, prior claim, mortgage, charge or security interest.

UNSC Resolution 2206 (2015) is available at http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/2206%20(2015).

“One-for-One” Rule

The “One-for-One” Rule applies to this proposal, as there are minimal administrative costs to business, because of the reporting requirement. However, the administrative burden associated with these Regulations is carved out from the “One-for-One” Rule, as they implement non-discretionary international obligations.

Small business lens

The small business lens does not apply to this proposal, as there are no costs (or insignificant costs) on small business, and small businesses would not be disproportionately affected.

Consultation

Foreign Affairs, Trade and Development Canada drafted the Regulations in consultation with the Department of Justice.

Rationale

The Regulations will allow Canada to fulfill its international legal obligations by implementing the economic sanctions and the corresponding exceptions that have been imposed by the Security Council against South Sudan.

Implementation, enforcement and service standards

Canada’s sanctions regulations are enforced by the Royal Canadian Mounted Police and the Canada Border Services Agency. Every person who contravenes the Regulations is liable, upon conviction, to the punishments set out in section 3 of the United Nations Act (i.e. on summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both; or, on conviction on indictment, to imprisonment for a term of not more than 10 years.)

Contact

Karen MacArthur
Director
Southern and Eastern Africa Division
Foreign Affairs, Trade and Development Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 343-203-3333
Fax: 613-944-7432
Email: Karen.MacArthur@international.gc.ca