Regulations Amending the Regulations Implementing the United Nations Resolutions on Somalia: SOR/2020-120

Canada Gazette, Part II, Volume 154, Number 12

Registration

SOR/2020-120 June 1, 2020

UNITED NATIONS ACT

P.C. 2020-401 May 30, 2020

Whereas the Security Council of the United Nations, acting under Article 41 of the Charter of the United Nations, adopted Resolution 733 (1992) on January 23, 1992, Resolution 751 (1992) on April 24, 1992, Resolution 1356 (2001) on June 19, 2001, Resolution 1425 (2002) on July 22, 2002, Resolution 1725 (2006) on December 6, 2006, Resolution 1744 (2007) on February 20, 2007, Resolution 1772 (2007) on August 20, 2007, Resolution 1844 (2008) on November 20, 2008, Resolution 2111 (2013) on July 24, 2013, Resolution 2244 (2015) on October 23, 2015 and Resolution 2444 (2018) on November 14, 2018;

And 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;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to section 2 of the United Nations Act footnote a, makes the annexed Regulations Amending the Regulations Implementing the United Nations Resolutions on Somalia.

Regulations Amending the Regulations Implementing the United Nations Resolutions on Somalia

Amendments

1 (1) The definitions property, Security Council Resolution 733, Security Council Resolution 751, Security Council Resolution 1356,Security Council Resolution 1425, Security Council Resolution 1744, Security Council Resolution 1772, Security Council Resolution 2036, Security Council Resolutions and technical data in section 1 of the Regulations Implementing the United Nations Resolutions on Somalia footnote 1 are repealed.

(2) The definitions paragraph 3 designated person and paragraph 8 designated person in section 1 of the English version of the Regulations are repealed.

(3) The definitions arms and related material, Canadian, Committee of the Security Council and Somalia in section 1 of the Regulations are replaced by the following:

(4) The definitions entité, personne désignée en vertu du paragraphe 3 and personne désignée en vertu du paragraphe 8 in section 1 of the French version of the Regulations are replaced by the following:

(5) Section 1 of the Regulations is amended by adding the following in alphabetical order:

(6) Section 1 of the English version of the Regulations is amended by adding the following in alphabetical order:

2 The heading before section 2 and sections 2 to 18 of the Regulations are replaced by the following:

Prohibitions

Prohibited activities

2 (1) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly

Payments

(2) Subsection (1) does not prohibit the payment of interest or other earnings to a designated person under paragraph 3 or a designated person under paragraph 8 if

Embargo — arms and related material

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

Arms and related material — designated person under paragraph 8

(2) It is prohibited for any person in Canada or any Canadian outside Canada to knowingly

Embargo — military activities

4 It is prohibited for any person in Canada or any Canadian outside Canada to knowingly provide technical assistance or financial assistance related to military activities, directly or indirectly, to Somalia or any person in Somalia or to a designated person under paragraph 8.

Embargo — transport

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

Import prohibited

6 It is prohibited for any person in Canada or any Canadian outside Canada to knowingly import, directly or indirectly, charcoal, wherever situated, from Somalia or from any person in Somalia.

Exception — non-lethal military equipment

7 (1) Subsection 3(1) and paragraph 5(a) do not apply to non-lethal military equipment intended solely for humanitarian or protective use, if the Committee of the Security Council has been notified five days in advance of its intended use.

Exception — protective clothing

(2) Subsection 3(1) and paragraph 5(a) do not apply to protective clothing, including flak jackets and military helmets, that is temporarily exported to Somalia by United Nations personnel, representatives of the media and humanitarian and development workers and associated personnel, solely for their personal use.

Exception — various entities

8 Subsection 3(1) and paragraph 5(a) do not apply to an activity that is intended solely for the support of

Exception — Somalia

9 (1) Subsection 3(1) and paragraph 5(a) do not apply to arms and related material that are intended for use by Somalia unless those items are set out in the annex to Security Council Resolution 2111, in which case the activity must be approved in advance by the Committee of the Security Council.

Exception — security sector

(2) Subsection 3(1) and paragraph 5(a) do not apply to an activity that is intended solely to develop Somalia’s security sector, if the Committee of the Security Council has been notified five working days in advance of the activity and does not object.

Exception — suppression of piracy

10 (1) Subsection 3(1) and paragraph 5(a) do not apply to an activity that is intended solely to support a Member State of the United Nations or an international, regional or sub-regional organization in undertaking measures to suppress piracy and armed robbery at sea off the coast of Somalia, if the activity is in accordance with Security Council Resolution 2111.

Exception — Canadian vessels

(2) Subsection 3(1) does not apply to arms and related material that are carried for defensive purposes on a Canadian vessel as defined in section 2 of the Canada Shipping Act, 2001.

Assisting in prohibited activity

11 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 2 to 6.

Obligations

Duty to determine

12 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 under paragraph 3 or a designated person under paragraph 8:

Duty to disclose — RCMP or CSIS

13 (1) Every person in Canada, every Canadian outside Canada and every entity set out in section 12 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

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

Certificate

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

Basic or extraordinary expenses

15 (1) A person whose property is affected by the application of section 2 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 1844 that the property is necessary for basic or extraordinary expenses or that it 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:

Mistaken identity

16 (1) A person whose name is the same as or similar to the name of a designated person under paragraph 3 or a designated person under paragraph 8 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 under paragraph 3 or that designated person under paragraph 8.

Determination by Minister

(2) Within 45 working days after receiving the application, the Minister must

Personal Information

Communication by Minister

17 (1) The Minister may, for the purpose of enforcing these Regulations or fulfilling any obligation under a resolution of the Security Council with respect to Somalia or to respond to a request from the Security Council or any of its subsidiary organs, disclose any personal information to an official or the Security Council or any of its subsidiary organs.

Receipt of information

(2) An official may receive any personal information disclosed to them under subsection (1).

Communication by official

(3) An official may, for the purpose of enforcing these Regulations or fulfilling any obligation under a resolution of the Security Council with respect to Somalia or to respond to a request from the Security Council or any of its subsidiary organs, disclose any personal information to the Minister.

Application Before Publication

6 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

7 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

As a Member State of the United Nations and pursuant to Article 25 of the Charter of the United Nations (the Charter), Canada is legally obligated to implement binding decisions of the Security Council taken under Chapter VII of the Charter. On January 23, 1992, acting under Chapter VII of the Charter, the United Nations Security Council (the Security Council) adopted Resolution 733 (1992), imposing an arms embargo on Somalia. Resolution 1844 (2008) expanded the embargo to include a targeted ban on individuals and entities and created an asset freeze. Resolution 2036 (2012) established a charcoal ban. Canada has implemented resolutions 733 (1992), 1844 (2008) and 2036 (2012) through the Regulations Implementing the United Nations Resolutions on Somalia. Since the implementation of these resolutions, the Security Council adopted Resolution 2111 (2013), which consolidated the arms embargo and the asset freeze, set out exemptions to the arms embargo and the asset freeze, and provided for a related notification requirement. Resolution 2498 (2019) extended the exemptions to the arms embargo and the asset freeze.

Objective

Description

The Regulations Amending the Regulations Implementing the United Nations Resolutions on Somalia (the Regulations) give effect to the decisions by the Security Council to impose various measures outlined in resolutions 2111 (2013) and 2498 (2019).

The Regulations

For more information, please consult Security Council Resolution 2111 (2013) (PDF) and Resolution 2498 (2019) (PDF).

Regulatory development

Consultation

Global Affairs Canada engages regularly with relevant stakeholders including civil society organizations and cultural communities and other like-minded governments regarding Canada’s approach to sanctions implementation. With respect to the specific proposed amendments, no such external outreach was conducted. Canada is obliged to implement the binding elements of the Security Council resolutions related to the Regulations as a member of the United Nations.

Modern treaty obligations and Indigenous engagement and consultation

An assessment has been conducted and no modern treaty implications have been identified.

Instrument choice

Regulations are the sole method to enact sanctions in Canada. No other instrument could be considered.

Regulatory analysis

Benefits and costs

The Regulations make Canada compliant with its obligations under the Charter of the United Nations by implementing Security Council resolutions 2111 (2013) and 2498 (2019).

Canadian banks and financial institutions are required to comply with the sanctions. They will do so by adding the new prohibitions to their existing monitoring systems, which may result in a minor compliance cost.

Small business lens

As trade is already impacted by current economic measures against Somalia, these Regulations are not expected to result in cost impacts on small business.

To facilitate compliance by small businesses, Global Affairs Canada is in the process of conducting enhanced outreach with stakeholders to better inform them of changes to the Regulations. This includes updates to the sanctions website as well as the creation of the sanctions hotline. In addition, the Trade Commissioner Service is engaged in implementing Canada’s Trade Diversification Strategy, which will support Canadian companies seeking to find alternative export markets.

One-for-one rule

The one-for-one rule does not apply to the Regulations, as they do not impose incremental administrative burden on businesses.

Regulatory cooperation and alignment

The Regulations align with Security Council resolutions 2111 (2013) and 2498 (2019) and are made to fulfill Canada’s obligation to implement all measures taken by the Security Council under Chapter VII of the Charter of the United Nations.

Strategic environmental assessment

The Regulations are unlikely to result in important environmental effects. In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

The subject of sanctions has previously been addressed for effects on gender and diversity in May 2018, in consultations with departmental gender-based analysis plus (GBA+) experts.

Although sanctions are intended to facilitate change to restore peace and security, protect and advance human rights, and combat foreign corruption through economic pressure on states and responsible individuals, they can nevertheless have an impact on vulnerable groups. In countries facing sanctions, such groups have historically been more likely to bear the political and economic instability caused by economic sanctions due to their disadvantaged position in society.

Women, in particular, are more likely to suffer due to their vulnerable socioeconomic and political status. This may particularly be the case in developing countries where broader economic sanctions are in place. This suffering has been historically measured using the following variables: women’s participation in the workplace; economic participation; political participation; and women’s economic rights. In addition, women are often primarily responsible for feeding and caring for their families in many of their countries, which is made more difficult if goods are scarce or not available in target countries, as a result of sanctions.

Current sanctions regimes are being improved from a gender and diversity responsiveness perspective. Canada is seeking to improve this responsiveness through funding research that further explores the gendered aspects of Canadian and international sanctions, as well as advancing international advocacy efforts in the multilateral settings where sanctions are designed. In addition, Canada undertakes direct, gender-responsive development programming in many countries affected by sanctions, and Canada’s contributions to international financial institutions can also go toward projects and programs in countries subject to Canadian sanctions.

Implementation, compliance and enforcement, and service standards

Canada’s sanctions regulations are enforced by the Royal Canadian Mounted Police and the Canada Border Services Agency. Anyone who contravenes the Regulations is liable, upon conviction, to the punishments set out in section 3 of the United Nations Act (namely, 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

Marie-Hélène Côté
Director
Southern and Eastern Africa Bilateral Relations Division
Telephone: 343‑203‑3335
Email: Marie-Helene.Cote@international.gc.ca