Regulations Amending the Regulations Implementing the United Nations Resolutions on Libya: SOR/2018-101

Canada Gazette, Part II, Volume 152, Number 11

Registration

May 16, 2018

UNITED NATIONS ACT
SPECIAL ECONOMIC MEASURES ACT

P.C. 2018-541 May 14, 2018

Whereas the Security Council of the United Nations, acting under Article 41 of the Charter of the United Nations, adopted Resolution 1970 (2011) on February 26, 2011, Resolution 1973 (2011) on March 17, 2011, Resolution 2009 (2011) on September 16, 2011, Resolution 2095 (2013) on March 14, 2013, Resolution 2146 (2014) on March 19, 2014, Resolution 2174 (2014) on August 27, 2014 and Resolution 2362 (2017) on June 29, 2017;

Whereas it appears to the Governor in Council to be necessary to make regulations for enabling the measures set out in those resolutions to be effectively applied;

And whereas the Governor in Council is of the opinion that the situation in Libya constitutes a grave breach of international peace and security that has resulted or is likely to result in a serious international crisis;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, makes the annexed Regulations Amending the Regulations Implementing the United Nations Resolutions on Libya pursuant to

Regulations Amending the Regulations Implementing the United Nations Resolutions on Libya

Amendments

1 The title of the Regulations Implementing the United Nations Resolutions on Libya footnote 1 is replaced by the following:

Regulations Implementing the United Nations Resolutions and Imposing Special Economic Measures on Libya

2 Sections 1 to 19 of the Regulations are replaced by the following:

Definitions

1 The following definitions apply in these Regulations.

Libya means the Libyan state and includes

Minister means the Minister of Foreign Affairs. (ministre)

official means an individual who

working day means a day that is not Saturday or a holiday. (jour ouvrable)

PART 1

United Nations Resolutions

Interpretation

Definitions

2 (1) The following definitions apply in this Part.

armed mercenary means any person who

arms and related material means any type of weapon, ammunition, military vehicle, military equipment or paramilitary equipment, and their spare parts. (armes et matériel connexe)

Committee of the Security Council means the Committee of the Security Council established under paragraph 24 of Security Council Resolution 1970. (Comité du Conseil de sécurité)

designated person means a person that is designated by the Security Council under paragraph 17 of Security Council Resolution 1970 or by the Committee of the Security Council under paragraph 24(c) of that resolution or whose name appears in Annex II to that resolution or in Annex II to Security Council Resolution 1973. (personne désignée)

designated vessel means a vessel that is designated by the Committee of the Security Council or by the Security Council under paragraph 11 of Security Council Resolution 2146. (bâtiment désigné)

military activities means any activities conducted by state armed forces, non-state armed forces or armed mercenaries and any activities that support the operational capabilities of an armed group in Libya. (activités militaires)

Security Council means the Security Council of the United Nations. (Conseil de sécurité)

Security Council Resolution 1970 means Resolution 1970 (2011) of February 26, 2011, adopted by the Security Council. (résolution 1970 du Conseil de sécurité)

Security Council Resolution 1973 means Resolution 1973 (2011) of March 17, 2011, adopted by the Security Council. (résolution 1973 du Conseil de sécurité)

Security Council Resolution 2146 means Resolution 2146 (2014) of March 19, 2014, adopted by the Security Council. (résolution 2146 du Conseil de sécurité)

technical assistance means any form of assistance, such as providing instruction, training, consulting services or technical advice or transferring know-how or technical data. (aide technique)

Canadian, entity, person and property

(2) In this Part, the definitions Canadian, entity, person and property have the same meaning as in section 2 of the Special Economic Measures Act.

Prohibitions

Prohibited activities

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

Exception

4 (1) With respect to the property of the following designated persons, paragraphs 3(a) to (c) apply only if that property was affected by the application of those paragraphs on September 16, 2011:

Non-application of paragraphs 3(d) and (e)

(2) Paragraphs 3(d) and (e) do not apply to the designated persons set out in subsection (1).

Arms and related material — exporting

5 (1) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly export, sell, supply or transfer, directly or indirectly, arms and related material, wherever situated, destined for Libya or for any person in Libya.

Arms and related material — importing

(2) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly import, purchase or acquire arms and related material, wherever situated, from Libya or from any person in Libya.

Arms and related material — technical assistance

(3) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly provide technical assistance related to the sale, supply, transfer, manufacture, maintenance or use of arms and related material to Libya, to any person in Libya or to any person acting on behalf of Libya.

Arms and related material — property and financial services

(4) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly make available any property or provide any financial or related services to Libya, to any person in Libya or to any person acting on behalf of Libya if the property or services are related to the sale, supply, transfer, manufacture, maintenance or use of any arms and related material.

Military activities — technical assistance

6 (1) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly provide technical assistance related to military activities in Libya to Libya or to any person in Libya .

Military activities — property and financial services

(2) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly make available any property or provide any financial or related services that are related to military activities in Libya to Libya or to any person in Libya.

Petroleum

7 It is prohibited for any person in Canada or any Canadian outside Canada to knowingly deal in Libyan petroleum, including crude oil and refined petroleum products, that is transported on board a designated vessel, or make available any property or provide any financial or related services in respect of any such dealing.

Canadian vessel or aircraft

8 (1) It is prohibited for any owner or master of a Canadian vessel, as defined in section 2 of the Canada Shipping Act, 2001, any operator of an aircraft registered in Canada, any Canadian owner or master of a vessel or any Canadian operator of an aircraft to knowingly carry, cause to be carried or permit to be carried arms and related material, wherever situated, destined for Libya or any person in Libya.

Carriage from Libya

(2) It is prohibited for any owner or master of a Canadian vessel, as defined in section 2 of the Canada Shipping Act, 2001, any operator of an aircraft registered in Canada, any Canadian owner or master of a vessel or any Canadian operator of an aircraft to knowingly carry, cause to be carried or permit to be carried arms and related material from Libya.

Servicing of designated vessel

9 (1) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly provide bunkering services or other services related to the operation or the maintenance of designated vessels, including stevedoring and lighterage, unless it is necessary to do so for the safeguarding of human life.

Exception

(2) Subsection (1) does not apply to services that are necessary for the return of a designated vessel to Libya if the person who provides the services notifies the Minister within 48 hours after doing so.

Exception — non-lethal military equipment

10 (1) Section 5, subsection 6(1) and section 8 do not apply to non-lethal military equipment that is intended solely for humanitarian or protective use.

Exception — protective clothing

(2) Subsections 5(1) and (2) and section 8 do not apply to protective clothing, including flak jackets and military helmets, that is temporarily exported to Libya by United Nations personnel, representatives of the media and humanitarian and development workers and associated personnel solely for their personal use.

Exception — equipment intended for Government of Libya

(3) Sections 5, 6 and 8 do not apply to non-lethal military equipment that is intended solely for security or disarmament assistance to the Government of Libya.

Exception — small arms and light weapons

(4) Subsection 5(1) and section 8 do not apply to small arms and light weapons that are temporarily exported to Libya by United Nations personnel, representatives of the media and humanitarian and development workers and associated personnel solely for their personal use, if the Committee of the Security Council has been notified in advance and does not oppose them.

Applications

Exemption

11 (1) A person that wishes to engage in any activity that is prohibited under this Part may, before doing so, apply to the Minister in writing for a certificate to exempt the activity from the application of these Regulations.

Certificate

(2) The Minister may issue the certificate if the Security Council does not intend that the activity is prohibited or if the Security Council or the Committee of the Security Council has approved the activity in advance.

Exemption for property

12 (1) A person whose property is 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 is subject to a lien, mortgage or security interest, to a hypothec 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 1970 that the property is necessary for basic or extraordinary expenses or is subject to a lien, mortgage or security interest, to a hypothec or prior claim, to a charge or to a judicial, administrative or arbitral decision, the Minister must issue a certificate within the following time periods:

Certificate — parties to contract

13 (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 to permit the party that is a designated person to make payments or to carry out the transfer.

Certificate — time period

(2) The Minister must issue a certificate within 90 days after receiving the application and at least 10 working days after advising the Security Council of his or her intention to issue the certificate, if it is established that

Mistaken identity

14 (1) A person whose name is the same as or similar to the name of a designated person and that claims not to be that 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 receiving the application, the Minister must,

Disclosure of Information

Disclosure by official

15 (1) An official may, for the purpose of responding to a request from the Security Council, 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, disclose personal information to the Security Council.

Legal Proceedings

Prohibition — legal proceedings

16 No legal proceedings lie in Canada at the instance of the Government of Libya, of any person in Libya, of a designated person, of a person listed under Part 2 or of any person claiming through or acting on behalf of any such person in connection with any contract or other dealing if its performance was prevented in any way by these Regulations.

PART 2

Special Economic Measures

List

Listed person

17 A person whose name is listed under this Part is a person in respect of whom the Governor in Council, on the recommendation of the Minister, is satisfied that there are reasonable grounds to believe is

Prohibitions

Prohibited dealings and activities

18 It is prohibited for any person in Canada or any Canadian outside Canada to

Applications

Application to remove name from list

19 (1) A listed person may apply to the Minister in writing to have their name removed from the list established under this Part.

Reasonable grounds

(2) On receipt of an application, the Minister must decide whether there are reasonable grounds to recommend to the Governor in Council that the applicant’s name be removed from the list.

New application

20 If there has been a material change in circumstances since their last application under section 19 was submitted, a listed person may submit another application.

Mistaken identity

21 (1) A person whose name is the same as or similar to the name of a listed person and that claims not to be that person may apply to the Minister in writing for a certificate stating that they are not that listed person.

Determination by Minister

(2) Within 30 days after receiving the application, the Minister must,

PART 3

General Provisions

Prohibited Involvement

Assisting a prohibited activity

22 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 activity prohibited by sections 3, 5 to 9 and 18.

Obligations

Duty to determine

23 (1) 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:

Listed person

(2) Every entity referred to in subsection (1) must also 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 listed person.

Duty to disclose — RCMP or CSIS

24 (1) Every person in Canada, every Canadian outside Canada and every entity referred to in subsection 23(1) 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 or the Special Economic Measures Act and no civil proceedings lie against a person for a disclosure made in good faith under subsection (1).

Application Before Publication

3 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

4 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 United Nations Security Council (UNSC), acting under chapter VII of the Charter of the United Nations, adopted Resolutions 2146 (2014), 2174 (2014) and 2362 (2017). These Resolutions strengthen and modify sanctions on Libya that had been previously imposed by the UNSC. The implementation into Canadian law of UNSC Resolutions 2146 (2014), 2174 (2014) and 2362  (2017) requires amendments to the Regulations Implementing the United Nations Resolutions on Libya (previously the Regulations Implementing the United Nations Resolutions on Libya and Taking Special Economic Measures).

Background

On February 26, 2011, acting under chapter VII of the Charter of the United Nations, the UNSC adopted Resolution 1970 imposing sanctions against Libya in response to the violence, use of force against civilians and gross systematic human rights violations by the Qadhafi regime in its efforts to quell the revolution that erupted in Libya on February 17, 2011. These sanctions included a prohibition on the sale, supply or transfer of arms and related material to Libya with exceptions for non-lethal military equipment intended solely for humanitarian or protective use and related technical assistance or training, as approved in advance by the UN Security Council Committee Established Pursuant to Resolution 1970 (2011) Concerning Libya (the Committee). These measures were implemented in Canada with the adoption, on February 27, 2011, of the Regulations Implementing the United Nations Resolutions on Libya and Taking Special Economic Measures (as they were then known), made pursuant to both the United Nations Act and the Special Economic Measures Act.

The United Nations’ (UN) sanctions regime directed at Libya was modified by the adoption of a number of resolutions, including UNSC Resolutions 1973 (2011), 2009 (2011), 2017 (2011) and 2040 (2012) to reflect events on the ground, such as the intensification of the conflict, the establishment of the National Transition Council (NTC) and the NTC’s eventual success over Qadhafi’s forces. Once the NTC was recognized as Libya’s official government, the UNSC eased the sanctions regime to reflect the international community’s resolve to support the new Libyan government in stabilizing the country. Canada also eased its unilateral sanctions against Libya in order to support the Libyan people and Libya’s new governing authorities. The Regulations Implementing the United Nations Resolutions on Libya and Taking Special Economic Measures were amended accordingly on August 31, 2011. On September 16, 2011, UNSC Resolution 2009 amended the sanctions regime so that the supply of arms and related material, including technical assistance, training, financial and other assistance, intended solely for security or disarmament assistance to the Libyan authorities, would be allowed, provided that the Committee was notified in advance and did not oppose the transactions.

On March 14, 2013, the UNSC adopted Resolution 2095, which decided that the prior approval or notification of the Committee would no longer be required for the supply of non-lethal military equipment intended solely for humanitarian or protective use and related technical assistance or training. The UNSC also decided that the prior approval or notification of the Committee would no longer be required for the provision of technical assistance, training or financial assistance intended solely for security or disarmament assistance to the Libyan government. These UNSC decisions reflected an improved political and security situation in Libya at that time. Canada amended the Regulations Implementing the United Nations Resolutions on Libya and Taking Special Economic Measures on September 22, 2011, and on September 30, 2013, to account for the changes made to the sanctions regime by the UNSC.

Objectives

The purpose of the Regulations Amending the Regulations Implementing the United Nations Resolutions on Libya is to bring Canada in line with its international legal obligations created by measures taken by the UNSC under chapter VII of the UN Charter, namely the decisions taken by the UNSC in Resolutions 2146 (2014), 2174 (2014) and 2362 (2017). These Resolutions were adopted by the UNSC pursuant to article 41 of chapter VII of the UN Charter and are binding on all member states. As a member state of the UN and pursuant to article 25 of the UN Charter, Canada is legally obligated to implement binding decisions of the UNSC. The implementation of the Resolutions into Canadian law requires amendments to Canada’s Libya sanctions regime.

The regulatory amendments also update language throughout the Regulations Implementing the United Nations Resolutions on Libya to give effect to certain recommendations made by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR), to clarify intent and to ensure consistency across Canada’s economic sanctions regulations. The SJCSR made several recommendations on the common provisions found in almost all of the sanctions regulations made under both the United Nations Act and the Special Economic Measures Act. Three of those provisions were in the Libya Regulations and were amended accordingly:

Description

On March 19, 2014, the UNSC, acting under chapter VII of the UN Charter, adopted Resolution 2146 regarding the illicit export of oil from Libya. The Resolution prohibited port entry, bunkering, and financial services for designated vessels transporting illicit oil from Libya. This reflected the concern of the international community that the widespread illicit export of crude oil undermined the Government of Libya, and posed a threat to the peace, security and stability of Libya. This prohibition was expanded on June 29, 2017, to apply to any designated vessel transporting petroleum illicitly exported from Libya, including crude oil and refined petroleum products, through the adoption of Resolution 2362.

On August 27, 2014, the UNSC also adopted Resolution 2174 which decided that the supply of arms of all types, except for non-lethal military equipment intended for humanitarian, protective, security or disarmament purposes, to Libya must be approved in advance by the Committee. This reflected the concerns of the international community that the deteriorating political and security situation in Libya had resulted in increased violence affecting civilians, and a higher risk of arms proliferation.

The amendments to the Regulations Implementing the United Nations Resolutions on Libya implement the decisions of UNSC Resolutions 2146 (2014), 2174 (2014) and 2362 (2017) not already incorporated in Canadian domestic legislation. More specifically, the amendments

The United Nations Act constitutes the appropriate legislative authority to implement into Canadian law the sanctions mandated by the UNSC. Information concerning the work of the Committee to oversee the relevant sanctions measures is available at

https://www.un.org/sc/suborg/en/sanctions/1970.

A link to the text of UNSCR 2046 (2014) can be found at

https://www.un.org/press/en/2014/sc11325.doc.htm.

A link to the text of UNSCR 2174 (2014) can be found at

https://www.un.org/press/en/2014/sc11537.doc.htm.

A link to the text of UNSCR 2362 (2017) can be found at

https://www.un.org/press/en/2017/sc12892.doc.htm.

“One-for-One” Rule

These Regulations are carved out from the “One-for-One” Rule, as they implement non-discretionary 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

Global Affairs Canada drafted the Regulations in consultation with the Department of Justice Canada.

Rationale

The Regulations allow Canada to fulfill its international legal obligations and align its sanctions regime with the resolutions adopted through UNSC Resolutions 2146 (2014), 2174 (2014) and 2362 (2017).

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

Sébastien Carrière
Director
Maghreb and Egypt Division
Global Affairs Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 343-203-3291
Email: Sebastien.carriere@international.gc.ca