Regulations Amending the Special Economic Measures (Burma) Regulations: SOR/2021-106

Canada Gazette, Part II, Volume 155, Number 11

Registration
SOR/2021-106 May 14, 2021

SPECIAL ECONOMIC MEASURES ACT

P.C. 2021-405 May 14, 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 b, (2) and (3) of the Special Economic Measures Act footnote c, makes the annexed Regulations Amending the Special Economic Measures (Burma) Regulations.

Regulations Amending the Special Economic Measures (Burma) Regulations

Amendments

1 Part 1 of the schedule to the Special Economic Measures (Burma) Regulations footnote 1 is amended by adding the following after item 44:

2 Part 2 of the schedule to the Regulations is amended by adding the following after item 54:

Application Before Publication

3 For the purpose of paragraph 11(2)(a) of the Statutory Instruments Act, these Regulations apply according to their terms 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

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 military coup against the democratically elected National League for Democracy (NLD) government, and has arbitrarily detained 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, effectively seizing control of the country's governance, and unleashed a campaign of brutal repression and violence in the face of popular anti-Tatmadaw demonstrations — known as the Civil Disobedience Movement (CDM) — detaining over 3 000 individuals, and killing over 750, including children. In response, political opposition figures formed the Committee Representing the Pyidaungsu Hluttaw (CRPH), and on April 16, 2021, announced the formation of a National Unity Government (NUG) that aims to replace the 2008 military-drafted constitution and restore civilian democratic governance. Despite condemnation of the coup by the international community, and repeated calls to refrain from taking violent measures against protesters, the Tatmadaw has not shown any signs of restraint, and appropriate steps to restore the democratically elected government and the people of Myanmar's democratic rights have not been taken.

Background

On December 13, 2007, the Special Economic Measures (Burma) Regulations, made pursuant to subsection 4(4) of the Special Economic Measures Act, came into force in order to respond to the gravity of the human rights and humanitarian situation in Myanmar which, in the opinion of the Government, constituted a grave breach of international peace and security that has 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 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. Following the elections, political tensions increased between the civilian government and the Tatmadaw — the latter disputing the outcomes of the elections, alleging of mass electoral fraud, and threatening a coup.

Following the coup on February 1, 2021, the Tatmadaw appointed U Myint Swe as the new President, appointed new ministers, replaced key high-level officials, convened the Myanmar National Defence and Security Council (NDSC), established a new State Administration Council (SAC), and transferred all state powers (legislative, executive and judiciary) to the Commander-in-Chief. Allegations by the Tatmadaw that their actions fall within the parameters of Myanmar's constitution, arguing that they had to intervene in order to uphold Myanmar's sovereignty, have been widely discredited by international observers. On February 26, 2021, the newly appointed chairman of the Union Election Commission, Thein Soe, formally announced the nullification of the November 8, 2020, election results.

Popular opposition to the military coup in Myanmar has been swift and widespread, with large-scale protests in the tens of thousands occurring across the country. Political opposition figures formed the CRPH, and on April 16, 2021, announced the formation of a National Unity Government (NUG) that aims to replace the 2008 military-drafted constitution and restore civilian democratic governance. In response, the Tatmadaw implemented draconian legal measures to criminalize dissent, imposed martial law in several townships of major cities and arbitrarily detained over 3 000 individuals. The Tatmadaw and the Myanmar police have deployed indiscriminate and disproportionate use of lethal force against peaceful protesters, including the use of live rounds, automatic weapons, snipers, and rifle grenades, killing over 750 peaceful protesters and civilians, including children, since the beginning of the coup.

On April 24, 2021, Senior-General Min Aung Hlaing participated in the Association of Southeast Asian Nations (ASEAN) leaders' meeting, from which a five-point consensus emerged, agreeing in principle on the (1) cessation of violence; (2) commencement of constructive dialogue; (3) the appointment of an ASEAN special envoy; (4) ASEAN humanitarian assistance; and (5) a visit to Myanmar by the ASEAN special envoy. Subsequently, on April 26, 2021, a SAC press release effectively rejected ASEAN's five points, stating that it would consider ASEAN's “suggestions” only once stability has been restored, and only then if and where doing so would serve the interests and objectives of the Tatmadaw.

The failure of the Tatmadaw to engage in good-faith dialogue through diplomatic means indicates that it is unwilling to finding a negotiated solution. The Tatmadaw has not made any commitment to release all arbitrarily detained individuals to date, nor has it taken any demonstrable and concrete steps to restore the democratically elected government and the people of Myanmar's democratic rights. Actions taken by the Tatmadaw against its own people indicate that it is still not genuinely committed to reversing its actions or to changing its behaviour, which includes indiscriminate and disproportionate use of lethal force against civilians, including children; 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 the right to freedom of opinion and expression, association and assembly.

Under the direction of Senior General Min Aung Hlaing, and under the aegis of the SAC and military-appointed officials, the Tatmadaw's actions constitute a grave breach of international peace and security resulting in a serious international crisis, and violating the rights of the people of Myanmar to free and fair democratic elections. In addition, the Tatmadaw has demonstrated that it is willing to maintain power by all means necessary, including through the use of state-sponsored violence and indiscriminate use of lethal force against the people of Myanmar, in an effort to suppress pro-democracy protests. The Tatmadaw has failed to uphold its obligations 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.

The coup is having a destabilizing effect on peace and security in the entire region. Compounded by an increase in fighting between the Tatmadaw and ethnic armed organizations along Myanmar's borders, the coup has already started to produce a spillover effect across Myanmar's borders, with thousands seeking refuge in neighbouring countries, and risks engulfing the country into protracted civil conflict. 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. Violent military crackdowns on protesters could continue and worsen, leading to ensuing exoduses of civilians. The coup has also had an already significant impact on the country's economy, and risks creating an even greater humanitarian crisis. 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, gems 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 associated corruption they generate, have the potential to grow to new heights.

Canada has been strongly engaged in diplomatic efforts related to the situation in Myanmar, through bilateral and multilateral channels to coordinate actions. On February 18, 2021, Canada announced targeted sanctions against the military leaders of the coup, including Senior General Min Aung Hlaing, his Deputy Soe Win, and seven others. These sanctions were developed and imposed in coordination with the United Kingdom, following similar measures by the United States. Since 2007, Canada has maintained sanctions on Myanmar individuals and entities under the Special Economic Measures (Burma) Regulations (the Regulations).

According to the Regulations, it is prohibited for any person in Canada and any Canadian outside Canada to

Objective

Description

The Regulations Amending the Special Economic Measures (Burma) Regulations (the amendments) add 16 senior Myanmar military or military-appointed officials, and family members of Senior-General Min Aung Hlaing, as well as 10 entities linked to the regime and/or controlled by designated individuals, to the schedule of the Regulations.

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 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.

Instrument choice

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

Regulatory analysis

Benefits and costs

The application of sanctions will serve to put pressure on the Tatmadaw to change its behaviour, and demonstrate Canada's readiness to impose real costs on those working to obstruct or undermine international efforts to resolve the crisis in Myanmar. This will further demonstrate that those who support the Tatmadaw regime will face consequences. The sanctions communicate a clear message 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, additional sanctions send an important message from Canada and incentivize the Tatmadaw to change its behaviour.

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

While it is unlikely that Canadian businesses have dealings with the newly listed individuals and entities, and likely no significant loss of opportunities for small businesses is expected as a result of the amendments, Global Affairs Canada is in the process of conducting enhanced outreach with stakeholders to better inform them of changes to the Regulations to help facilitate compliance by small business. This includes updates to the sanctions website as well as the creation of the sanctions hotline.

In addition, on April 9, 2021, Canada issued a business advisory in order to help ensure Canadian companies, including small businesses, are aware of heightened commercial and reputational risks of doing business in Myanmar. The advisory also outlined the Government of Canada's expectations with respect to responsible business practices abroad, and recommended that Canadian companies undertake thoroughly responsible business conduct due diligence, including closely examining their supply chains to determine whether their activities support military-owned conglomerates or their affiliates.

One-for-one rule

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 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), military-appointed high-level officials, 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, among others, to allow for the delivery of humanitarian assistance to provide some mitigation of the impact of sanctions on vulnerable groups. The Minister of Foreign Affairs can also issue permits pursuant to an Order. As such, 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.

Contact

Colin Townson
Deputy Director
Southeast Asia Division
Global Affairs Canada
Email: colin.townson@international.gc.ca