Regulations Amending the Special Economic Measures (Burma) Regulations: SOR/2022-263
Canada Gazette, Part II, Volume 156, Number 26
SOR/2022-263 December 7, 2022
SPECIAL ECONOMIC MEASURES ACT
P.C. 2022-1303 December 7, 2022
Whereas the Governor 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, Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, makes the annexed Regulations Amending the Special Economic Measures (Burma) Regulations under subsections 4(1)footnote a, (1.1)footnote b, (2)footnote c and (3) of the Special Economic Measures Act footnote d.
Regulations Amending the Special Economic Measures (Burma) Regulations
1 Part 1 of the schedule to the Special Economic Measures (Burma) Regulations footnote 1 is amended by adding the following in numerical order:
- 61 Dynasty International Company Limited
- 62 International Gateways Group
- 63 Asia Sun Group
2 Part 2 of the schedule to the Regulations is amended by adding the following in numerical order:
- 78 Zaw Min Tun
- 79 Maung Maung Ohn (also known among other names as Mg Mg Ohn)
- 80 Tun Tun Naung
- 81 Khin Maung Yi
- 82 Myo Myint Oo
- 83 Thaung Han
- 84 Win Shein
- 85 Ko Ko Lwin
- 86 Aung Soe
- 87 Zin Min Htet
- 88 Hlaing Moe Myint
- 89 Myo Thitsar
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.)
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.
Despite condemnation by the international community, repeated calls to halt violence, and efforts led by the Association of Southeast Asian Nations (ASEAN) to engage the regime in inclusive dialogues toward peace, the regime has not altered course. Violence is in fact escalating while gross human rights and humanitarian law violations are increasing in number and severity.
Senior members of the regime are contributing to the junta’s violent attempts to consolidate control within Myanmar, while other individuals and entities acting on behalf of the regime continue to procure and supply arms and resources to the Myanmar military, thus perpetuating the armed conflict and use of disproportionate force against civilian populations, and leading to continued violence and an ongoing grave breach of international peace and security.
Violence, severe human rights violations, humanitarian impacts on the most vulnerable, spillover into neighbouring countries by those fleeing violence, and the lack of tangible movement toward peace merit further coercive action.
Since the February 2021 military coup, the regime has failed to fully consolidate its power, and violent resistance across the country has grown, pushing Myanmar close to failed state status and economic collapse, reversing previous democratic and economic gains, with accelerating armed conflicts, making the prospect of any safe, voluntary or dignified return of the displaced Rohingya people unlikely. People’s Defense Forces (PDFs) have been formed locally throughout the country and are engaging in guerilla style fighting against the regime, meanwhile Ethnic Armed Organizations (EAO) continue decades-long conflicts with the Tatmadaw. Political opposition has crystallized around a National Unity Government (NUG) which has formed a shadow government and is vying for international recognition, recently moving from political into armed resistance.
Gross and systematic human rights violations continue with unchecked impunity as the Tatmadaw escalates violence against its own population to exterminate resistance and assert its authority. The UN Special Rapporteur’s February 2022 report on violence since the coup underscores the gross human rights violations committed by the military regime against the people of Myanmar. The military has launched major operations in various parts of Myanmar, aiming to wipe out local People’s Defence Forces and the civilian support they enjoy. Amid international inaction and waning global interest, the military has attacked civilians and civilian infrastructure from the air and ground, causing mass displacement and a deepening humanitarian crisis. Many of the ongoing actions targeting the civilian population constitute violations of international humanitarian law and international criminal law.
Peace efforts have been led by the Association of Southeast Asian Nations (ASEAN) with international backing, including from Canada, following ASEAN’s Five-Point Consensus, which established a roadmap to peace in Myanmar. Since its inception in April 2021, the regime has consistently stalled any tangible implementation of the Five-Point Consensus, and has effectively blocked the work of the ASEAN Special Envoy appointed under the Consensus, including by preventing meetings with key opposition figures.
As of November 24, 2022, violence associated with the coup has resulted in the following,footnote 2 with the accompanying humanitarian disaster growing daily:
|Violence associated with the coup||Number of people affected|
|Civilians killed by regime||2 533|
|Civilians arbitrarily detained||16 426|
|Civilians currently arbitrarily detained||12 986|
|Military members killed||19 840|
|Military members injured||5 042|
|Number of internally displaced persons since the coup||1 000 000|
|Number of refugees in neighbouring countries||70 000|
The situation, including escalating armed conflict and severe human rights violations, constitutes an ongoing grave breach of international peace and security and a worsening international crisis. It has spilled over into neighbouring countries, including those hosting the forcibly displaced. The lack of tangible movement toward peace merits further coercive action by Canada. As such, the proposed amendments include the addition of individuals and entities who are performing key functions on behalf of the military regime, lead misinformation efforts and the weaponization of the judiciary, and facilitate arms flows to the regime.
Misinformation campaign and executions
The military-run State Administration Council’s (SAC) Information Team leads are charged with development of consistent domestic and international messaging aimed at securing support for the regime (such as publicly branding pro-democracy and opposition as “terrorists”). They convene press conferences and information sessions where regime narratives are pushed, place friendly articles in the junta’s written media mouthpiece, the Global New Light of Myanmar, to further those narratives with the public. Information Team leads are generally responsible for spreading misinformation and disinformation regarding regime actions and the national conflict, while simultaneously demonizing the pro-democracy opposition. These campaigns are used to justify regime atrocities and gross and systematic human rights violations, and are essential to efforts to consolidate national control and cultivate international legitimacy.
On July 23, 2022, the regime executed four pro-democracy opposition leaders after trials carried out in secret, meeting no conceivable standard of fairness or impartiality. This act further exemplifies the regime’s complete disregard for human rights and the rule of law. These politically motivated executions, the first in over 30 years, capitalized on the regime’s misinformation campaign and demonization of pro-democracy activists. They were carried out despite a direct written personal plea to SAC leader General Min Aung Hlaing from Cambodian Prime Minister Hun Sen in his capacity as ASEAN Chair, despite informal assurances that the executions would not be carried out.
Attacks on civilians
The Tatmadaw has a well-documented history of targeting civilians for decades. In its attacks against civilians over the years, the Myanmar military has consistently used aerial bombardment from combat helicopters, fighter jets, and artillery, as well as ground armoured vehicles. In recent months, however, regime attacks against civilians have escalated considerably. The regime now makes regular use of internationally acquired aircraft, combat helicopters, armoured personnel vehicles, and missiles to carry out attacks targeting civilians in violation of international humanitarian and criminal law. Indiscriminate bombing by the regime has destroyed homes, religious buildings, schools and medical facilities, among other civilian infrastructure. In the vast majority of documented cases, civilians have been present at the location of the strike at the time of the attack. An egregious illustration of this trend was the September 16, 2022, attack on a school in the Sagaing Region. At the time of the attack, two regime helicopters targeted the school where 11 children were killed and 17 other people — 14 students and 3 teachers — were injured. Regime troops carried out the air raid alleging that resistance fighters were at the village school.
Subsequently, on October 23, the Myanmar military conducted an air strike on a gathering marking the 62nd anniversary of the Kachin Independence Organisation (KIO), an EAO, in Hpakant Township in Kachin State, killing at least 62 people (including civilians) and injuring at least 100, many of whom were subsequently denied medical care. This incident represents the single most fatal attack committed by the military regime since the coup, and makes the prospect of peaceful dialogue even more remote.
Integral to the perpetration of these atrocities are the arms and materiel the regime uses to commit them. Weapons provided to the regime enable its acts of violence and atrocities throughout Myanmar. Few States in the international community are willing to continue the sale and transfer of arms and military equipment to Myanmar given the risks of misuse. Thus, the regime seeks to conceal their acquisition and relies on well-connected individuals and the corporate entities they control to act on the regime’s behalf to identify, purchase and deliver arms and military equipment. Per UN General Assembly (UNGA) Resolution 75/287, Canada has called on all UN Member States to prevent the sale and transfer of arms, military equipment, materiel, dual-use equipment, and technical assistance to Myanmar. Canada has already done so, and we are strongly encouraging concerted international action in this regard. Canada is taking further strong action to deny the regime access to arms and military equipment by targeting these individuals and the corporate entities they control.
The military coup also threatens regional peace and security with regard to organized crime, drug trafficking, and other illicit industries. The Myanmar military has long been complicit in Myanmar’s illegal drug, timber, gems and jade mining economies, which attract organized criminal syndicates and incentivize corruption across the region. In the absence of domestic oversight or accountability in Myanmar, these industries, and the associated corruption they generate, are growing to new heights.
Canada has taken a multipronged response to the crisis in Myanmar. Canada has refused to legitimize the regime or engage with the regime’s government officials, except on specific topics in an ASEAN context or where it is critical to the delivery of essential services to vulnerable populations. Canada has pushed for international condemnation, action and attention, calling on the regime to halt violence, release those arbitrarily detained, engage genuinely with ASEAN, and permit full and unrestricted humanitarian access. This is supplemented by the pressure of five previous rounds of coordinated sanctions with our allies and parallel support to accountability efforts for past and ongoing crimes through international justice mechanisms, and humanitarian support and development programming to support vulnerable and conflict-affected populations. Canada has engaged through various bilateral and multilateral fora to develop and maintain pressure and attention on the crisis, while working to maintain development programming to provide life-saving care and treatment to vulnerable populations, including COVID-19 response. With sustained, concerted and coordinated pressure, combined with efforts to incentivize cooperation, the aim is for the regime to reverse course, engage with international peace efforts, and ultimately return to peace, democracy, prosperity and stability. This is likewise intended to address the grave breach of international peace the situation represents and resulting serious international crisis. Canada is committed to coordination and solidarity with key allies to better achieve these objectives.
Canada continues to be strongly engaged in diplomatic efforts to resolve the situation in Myanmar through bilateral and multilateral channels.
- To put additional pressure on the military regime to change its behaviour, including to immediately and genuinely engage with ASEAN-led peace efforts, immediately halt violence, engage in inclusive peace dialogues, grant unrestricted humanitarian access.
- To send a strong message that Canada denounces executions carried out by the regime, denounces the campaign of misinformation being constantly fed by the regime’s Information Team, and further denigrates the legitimacy of the State Administration Council.
- To communicate a clear message to the military regime, and to those who support it, that Canada will not accept that actions constituting a grave breach of international peace and security resulting in a serious international crisis, are taking place with impunity and disregard for the will and democratic rights of the people of Myanmar.
- To align with similar actions taken by international partners to present a unified international front.
The Regulations Amending the Special Economic Measures (Burma) Regulations add 12 individuals and 3 entities that are either linked to, or part of, the military regime to the Schedule of 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 individuals and entities targeted by sanctions would have potentially resulted in asset flight prior to the coming into force of the amendments.
Modern treaty obligations and Indigenous engagement and consultations
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
Application of sanctions will serve to put pressure on the military regime 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 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 military to accept accountability for their actions, additional sanctions send an important message from Canada and incentivize the regime 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 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 in these sectors, no significant loss of opportunities for small businesses is expected as a result of the amendments. 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, 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 thorough responsible business conduct due diligence, including closely examining their supply chains to determine whether their activities support military-owned conglomerates or their affiliates.
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 and entities that are members of the Myanmar military and persons engaged in activities that have contributed to the grave breach of international peace and security that has occurred in Myanmar, rather than against the citizens of 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 the Order. As such, these new sanctions are likely to have limited impact on the citizens of Myanmar.
The amendments are a direct response to the ongoing gross human rights violations continue as the military regime escalates violence against its own population to exterminate resistance, assert its authority and consolidate control. The situation, including escalating armed conflict and severe human rights violations, constitutes an ongoing grave breach of international peace and security and worsening serious international crisis, including spilling over into neighbouring countries, including those who are hosting those fleeing violence.
The 12 individuals and 3 entities being added to the Regulations are either current senior officials within the military regime, or working on their behalf to secure arms used to carry out egregious attacks against the civilian population of Myanmar. They are linked, in particular, to the unlawful, politically motivated execution of four pro-democracy activists in July 2022, and recent air strikes targeting a school (September 2022) and peaceful gathering (October 2022) costing dozens of civilian lives, including those of women and children.
These sanctions show solidarity with like-minded countries, which have already imposed similar restrictions.
Implementation, compliance and enforcement, and service standard
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.
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