Regulations Amending the Special Economic Measures (Burma) Regulations: SOR/2021-18
Canada Gazette, Part II, Volume 155, Number 5
SOR/2021-18 February 18, 2021
SPECIAL ECONOMIC MEASURES ACT
P.C. 2021-79 February 18, 2021
Whereas, the Administrator in Council is of the opinion that the situation in Burma constitutes a grave breach of international peace and security that has resulted or is likely to result in a serious international crisis;
Therefore, His Excellency the Administrator of the Government of Canada in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to subsections 4(1) footnote a, (1.1)footnote a, (2) and (3) of the Special Economic Measures Act footnote b, makes the annexed Regulations Amending the Special Economic Measures (Burma) Regulations.
Regulations Amending the Special Economic Measures (Burma) Regulations
1 Part 2 of the schedule to the Special Economic Measures (Burma) Regulations footnote 1 is amended by adding the following after item 45:
- 46 Min Aung Hlaing
- 47 Soe Win
- 48 Sein Win
- 49 Soe Htut
- 50 Ye Aung
- 51 Mya Tun Oo
- 52 Tin Aung San
- 53 Aung Lin Dwe
- 54 Ye Win Oo
Application Prior to Publication
2 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
3 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.)
On February 1, 2021, under the direction of Senior General Min Aung Hlaing, Commander in Chief of the Myanmar Armed Forces (Tatmadaw), the Myanmar military initiated a coup against the democratically elected National League for Democracy (NLD) government. They then proceeded to arbitrarily arrest and detain State Counsellor Daw Aung San Suu Kyi (ASSK), President U Win Myint, large numbers of other senior Union and state-level leaders of the ruling NLD party, as well as prominent civil society leaders, journalists, human rights activists, election workers, and foreign experts. Following these arrests, in the morning of February 1, 2021, the Tatmadaw declared a state of emergency for one year, effectively seizing control of the country's governance. Large-scale protests across the country and a nationwide "general strike" joined by various professional organizations and civil servants are calling for the release of all detainees, the abolition of military dictatorship and the 2008 constitution, and the establishment of a federal democratic Union. The international community has been united in condemning the coup, calling on the military to reverse their actions, to release all arbitrarily detained individuals, and to refrain from taking violent measures against protestors. Despite these calls, appropriate steps to restore the democratically elected government and the people of Myanmar's democratic rights have also not been taken.
On December 13, 2007, the Special Economic Measures (Burma) Regulations (the Regulations), made pursuant to subsection 4(4) of the Special Economic Measures Act, came into force in response to the gravity of the human rights and humanitarian situation in Myanmar (formerly Burma) which, in the opinion of the Government of Canada, constituted a grave breach of international peace and security that has resulted or is likely to result in a serious international crisis.
On April 24, 2012, Canada amended the Regulations to provide some sanctions relief to Myanmar following positive steps towards reform in the country, while retaining an arms embargo and a prohibition on dealings (e.g. dealing in any property, wherever situated, held by or on behalf of a designated person; providing any financial or related service to or for the benefit of a designated person) with designated Myanmar nationals connected with the Myanmar state.
On June 25, 2018, in a coordinated effort with the European Union, Canada announced additional targeted sanctions under the Special Economic Measures (Burma) Regulations against seven Myanmar nationals for their involvement in the military operations launched against the Rohingya in Rakhine State in August 2017.
On November 8, 2020, Myanmar held its second-ever democratic election that resulted in the incumbent Aung San Suu Kyi's NLD being elected to a second term. Despite some irregularities and concerns over ethnic minority voters' disenfranchisement, the elections were deemed credible by domestic and international election observers. After the elections, political tensions increased between the civilian government and the Tatmadaw, the latter disputing the outcomes of the elections, alleging mass electoral fraud, and threatening a coup.
Following the coup on February 1, 2021, the Tatmadaw appointed U Myint Swe as the country's pro tempore President, appointed interim ministers, convened the Myanmar National Defence and Security Council (NDSC), established a new State Administrative Council (SAC), and transferred state powers (legislative, executive and judiciary) to the Commander-in-Chief. Allegations by the Tatmadaw arguing that their actions fall within the parameters of Myanmar's constitution and that they had to intervene in order to uphold Myanmar's sovereignty, have been widely discredited by international observers. Despite intermittent Internet shutdowns, large-scale protests have been occurring across the country, and a nationwide "general strike" joined by various professional organizations and civil servants is calling for the release of all detainees, the abolition of military dictatorship and the 2008 constitution, and the establishment of a federal democratic Union.
Under the direction of Senior General Min Aung Hlaing, the Tatmadaw's recent actions constitute a grave breach of international peace and security resulting in a serious international crisis, and violating the right of the people of Myanmar to free and fair democratic elections. In addition, the Tatmadaw has failed to uphold its obligation under international law to protect human rights in Myanmar, including the rights to freedom of expression and peaceful assembly, freedom of association, and the right to liberty, security of the person, and equality before the law. There is no indication that the Tatmadaw is genuinely committed to finding a negotiated solution, reversing its actions, or to changing its behaviour, which includes continued and unwarranted restrictions on civil society, journalists and media workers; harassment and attacks on journalists; arbitrary arrests and detentions of opposition figures and dissidents; intermittent shutdowns and restrictions on the Internet, telecommunications systems and social media; restrictions on access to information; and infringement of the rights to freedom of opinion and expression, association and assembly. Appropriate steps to restore the democratically elected government and the people of Myanmar's democratic rights have also not been taken.
The coup is also expected to have a destabilizing effect on peace and security in the entire region. Prospects for the voluntary, safe, dignified and sustainable return of Rohingya refugees are even more uncertain as a result. Given the Tatmadaw's long-standing history of military campaigns and violence against other ethnic and religious minorities, the coup could drive more minority communities to neighbouring countries, resulting in fragmented refugee crises in the region. Increasing protests and civil disobedience movements could turn violent and lead to military crackdowns and ensuing exoduses of civilians. The military coup also threatens regional peace and security with regard to organized crime, drug trafficking and other illicit industries. The Tatmadaw has long been complicit in Myanmar's illegal drug, timber, and jade mining economies, which attract organized criminal syndicates and incentivize corruption region-wide. In the absence of any semblance of domestic oversight or accountability in Myanmar, these industries, and the associated corruption they generate, have the potential to grow to new heights.
The international community has been united in condemning the coup conducted by the Tatmadaw against the democratically elected government, calling on the Tatmadaw to reverse their actions, release all arbitrarily detained individuals, and to refrain from taking violent measures against protestors. Canada has been strongly engaged in diplomatic efforts related to the situation in Myanmar through bilateral and multilateral channels to coordinate actions. Since 2007, Canada has maintained sanctions on Myanmar individuals and entities under the Special Economic Measures (Burma) Regulations.
According to the Regulations, it is prohibited for any person in Canada and any Canadian outside Canada to
- "(a) deal in any property, wherever situated, held by or on behalf of a designated person;
- (b) enter into or facilitate any transaction related to a dealing referred to in paragraph (a);
- (c) provide any financial or related service in respect of a dealing referred to in paragraph (a);
- (d) make any goods, wherever situated, available to a designated person; or
- (e) provide any financial or related service to or for the benefit of a designated person."
- To put pressure on the Tatmadaw to change its behaviour and reverse its actions;
- To communicate a clear message to the Tatmadaw that Canada will not accept that actions constituting a grave breach of international peace and security, resulting in a serious international crisis, continue to take place with impunity and total disregard of the will and democratic rights of the people of Myanmar.
The Regulations Amending the Special Economic Measures (Burma) Regulations (the amendments) add nine high-level Myanmar military officials to the schedule to the Regulations.
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 amendments, public consultation would not have been appropriate, as publicizing the names of the listed persons targeted by sanctions would have likely resulted in asset flight prior to the coming into force of the amendments.
Modern treaty obligations and Indigenous engagement and consultation
An initial assessment of the geographical scope of the initiative was conducted and did not identify any modern treaty obligations, as the amendments do not take effect in a modern treaty area.
Regulations are the sole method to enact sanctions in Canada. No other instrument could be considered.
Benefits and costs
The application of sanctions will serve to put pressure on the Tatmadaw to change its behaviour. The sanctions communicate a clear message, namely that Canada will not accept that actions constituting a grave breach of international peace and security, resulting in a serious international crisis, continue to take place in Myanmar at the hands of the military with impunity. As efforts to date have not convinced the Tatmadaw to accept accountability for their actions, sanctions send an important message from Canada and encourage progress on a negotiated outcome.
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.
The amendments will create additional compliance costs for businesses seeking permits that would authorize them to carry out specified activities or transactions that are otherwise prohibited. However, costs will likely be low as it is unlikely that Canadian businesses have dealings with the newly listed persons.
Small business lens
As it is unlikely that Canadian businesses have dealings with the newly listed persons, no significant loss of opportunities for small businesses is expected as a result of the amendments.
To facilitate compliance of small businesses with the Regulations, 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.
The one-for-one rule does not apply to the amendments, as they do not impose an incremental administrative burden on businesses.
Regulatory cooperation and alignment
While the amendments are not related to a work plan or a commitment under a formal regulatory cooperation forum, they align with actions taken by like-minded partners.
Strategic environmental assessment
The amendments 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 (GBA+)
The focus of the amendments is on specific individuals who are members of the Myanmar military (Tatmadaw) and/or persons engaged in activities that have contributed to the grave breach of international peace and security that has occurred in Myanmar, rather than on Myanmar as a whole. This results in minimizing collateral effects to those dependent on those individuals.
Exemptions are included in the Regulations, including an allowance for the delivery of humanitarian assistance to help mitigate the impact of sanctions on vulnerable groups. The Minister of Foreign Affairs can also issue permits pursuant to the Special Economic Measures (Burma) Permit Authorization Order. Therefore, these new sanctions are likely to have limited impact on the citizens of Myanmar.
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. In accordance with section 8 of the Special Economic Measures Act, every person who willfully contravenes the Special Economic Measures (Burma) Regulations is liable upon summary conviction to a fine of not more than $25,000 or to imprisonment for a term of not more than one year, or to both; or upon conviction on indictment, to imprisonment for a term or not more than five years.
Southeast Asia Division